Torts C Stewart C Fall 1997
I.
INTENTIONAL HARMS
A. THE PRIMA FACIE CASE
B. ILLUSTRATIVE DEFENSES
II. ACCIDENTAL HARMS (BACKGROUND ON NEGLIGENCE AND STRICT LIABILITY)
A. HISTORICAL FOUNDATIONS
B. ANALYTICAL AND DECISIONAL FOUNDATIONS
III. NEGLIGENCE
A. THE REASONABLE MAN
B. THE CALCULUS OF RISK
C. CUSTOM
D. STATUTORY VIOLATIONS
E. JUDGE AND JURY
F. RES IPSA LOQUITUR
G. VICARIOUS LIABILITY/RESPONDEAT SUPERIOR
IV. CAUSATION
A. CAUSE IN FACT ("BUT FOR")
B. PROXIMATE CAUSE
V. AFFIRMATIVE DEFENSES BASED ON PLAINTIFF'S CONDUCT
A. CONTRIBUTORY NEGLIGENCE
B. ASSUMPTION OF RISK
C. COMPARATIVE NEGLIGENCE
VI. JOINT TORTFEASORS
VII. DAMAGES
VIII. MODERN STRICT LIABILITY
IX. ALTERNATIVES TO TORT
X. MEDICAL PRACTICE
A. THE STANDARD OF CARE
B. DISCLOSURE AND INFORMED CONSENT
C. RES IPSA LOQUITUR
D. ALTERNATIVE APPROACHES TO MEDICAL MISHAPS
XI. PRODUCTS LIABILITY
A. THE FALL OF PRIVITY AND THE RISE OF PRODUCTS LIABILITY
B. THE RESTATEMENT FORMULATION
C. MANUFACTURING (CONSTRUCTION) DEFECTS
D. DESIGN DEFECTS
E. DUTY TO WARN
F. PLAINTIFF'S CONDUCT
G. PUNITIVE DAMAGES
1
P's PF Case requires: Breach of Duty (w/ intent for intentional torts)
Injury (Generally physical, sometimes emotional distress or assault to
personal dignity
Causation (D's conduct must have caused the injury)
Damages (must establish a reasonable approximation of damages suffered)
Purpose of tort law, separate from K and crim:
P, not state, initiates. Removes possibility of state corruption or state malaise.
Incentive for future behavior.
P recovers, unlike in crim where D is punished, but P doesn't gain.
Redress: P is compensated by D for D's wrong to P.
Other systems outside of tort: insurance (damage reparation), criminal (punitive/incentive)
I.
INTENTIONAL HARMS - Requires purpose or knowledge to a substantial certainty
A. THE PRIMA FACIE CASE
1. ASSAULT An intentional attempt or threat to create an apprehension of imminent
harmful or offensive touching, accompanied by an apparent present ability to give
effect to the attempt or threat. (The intent need only be to create the apprehension,
not the actual harm. IE, a scary practical joke can be an assault). PF case for
assault must show the intent to create the apprehension, and that the assault
actually caused apprehension (and injury and damages).
2. BATTERY An intentional/affirmative act for the purpose of causing, or with
substantial certainty that the act will cause, a harmful or offensive (as determined
by community) touching of P or a third person, and touching of P results. Must be
an ACT, not an omission. Requires intent.
3. TRESPASS Encroachment onto real property. (Intent only requires knowledge of
entering area, not knowledge that it is private and act is worthy of trespass.)
4. INTENT Acting for the purpose of causing (Vosburg), or with substantial certainty
that the act will cause (Garret v Dailey), a harmful or offensive contact to P or a 3d
party, or an imminent apprehension thereof.
a. Not nec. intent to harm, just intent to commit the unlawful (harmful or offensive)
touching.
5. Vosburg(P) v. Putney(D) (WI, 1891, p4) D intentionally touch/kicks P in class. P,
who's leg had been hurt a month earlier sledding, suffered great pain moments
later. Over the course of days, injury worsened, doctors' operations don't help
(maybe hurt), leg is amputated. P sues for battery.
b. H: For P (jury) $1200. Affirmed. (First two verdicts overturned b/c of (1)
improper testimony allowed and (2) improper jury instruction.)
c. The act is unlawful b/c it occurred in a classroom called to order. If act
unlawful, so is the intent.
d. P's request for damages covers (1) medical expenses, (2) lost future earnings, (3)
pain & suffering
6. Garret(P) v.Dailey(D) (WA, 1955, p8) D moved chair; arthritic P falls and breaks
hip.
a. Harmful or offensive action can be indirect (D's removing of chair causes P's
contact w/ ground)
b. Five-year old D is considered capable of forming requisite intent.
c. Intent - knowing to a substantial certainty that act will produce some result
7. Talmage v Smith (Mich, 1894, p9) - D throws stick trying to hit 3d party, ends up
hitting P. Liable for battery.
2
B. ILLUSTRATIVE DEFENSES
1. Contributory/Joint Fault Contributory negligence is NEVER a defense to an
intentional tort. (ie - in Vosburg, perhaps P should have been wearing a brace;
makes no difference to D's defense.)
2. Consent
a. Mohr v. Williams (MN, 1905, p12) - After recommending surgery on right ear,
gaining P's consent, and anaesthetizing, Dr. determines problem more acute and
operates there instead, with success. P awakes, and sues for battery.
i. Battery (offensive touching), not assault (b/c patient was unconscious).
ii. TC, jury, high damages, ct sets aside as excessive. P and D appeal. App Ct
affirms decision and gives specific damages instructions (taking into account
fact that op was a success -- unusual for ct to tell jury to consider D's good
morals when assessing damages).
iii. D: no battery b/c (1) crazy to awaken, ask, and riskily anaesthetize again, (2)
consent was implied. Ct rejects.
b. Consent (often by K) is a common and effective defense in tort - written, oral or
by implication.
c. Burden of proof is on D b/c (1) if hard to prove/circumstantial, allows for P to
still recover for injury, (2) harsh to make P disprove in every case when it only
comes up rarely.
d. Emergency consent no real consent, but it is allowed to be implied in dire
circumstances
e. Substituted consent - allowable when ct permits by legal guardian or other
f. Ineffective IF (1) consenter is coerced (wallet or life), (2) consenter is not
competent to consent (insane, drunk, underage), (3) consenter not adequately
informed (consent to sex w/o knowing of partner's venereal disease, (4) if
contrary to public policy (suicide pact, illegal prize fight).
3. Insanity
a. McGuire v. Almy (MA, 1937, p31) Insane D, after making clear threats, hits
nurse with stick.
b. Ct: D is triable despite her insanity b/c she did INTEND to hit P - she acted with
the purpose of causing a harmful touching.
c. RS hypo if d thought she were swinging a light wand that would pass through
P's body, no intent, and no liability.
d. Rule: if insane person formed the requisite intent, insanity is not a defense.
4. Self-Defense
a. Courvoisier(D) v. Raymond(P) (CO, 1896, p35) - Transferred Intent. D shoots
cop, P, thinking he was part of a gang that had been marauding through and
around D's store. P sues for battery.
i. H: Even though he faced no real threat from P, D reasonably believed that he
did.
ii. This is a battery, but no liability b/c self-defense is proved by D.
iii. Self-Defense Proof: D must (1) reasonably believe he faces immediate
dangerous threat, (2) there must not be a reasonable alternative, and (3)
force used cannot be excessive.
5. "Necessity"
a. Ploof v Putnam (VT, 1908, p53) - P ties ship to D's dock during tempest; D's
servant cuts ship loose at D's request and boat is damaged. P sues for trespass
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(intentional tort -cutting of lines) and negl.
i. TC for P (over D's demurrer); App Ct affirms.
ii. D claims that its trespass onto P's ropes is immaterial b/c P trespassed first
by tying on. Ct agrees w/ P that P is not liable for trespass b/c they tied on
out of necessity (violent storm).
b. Vincent v. Lake Erie Transportation Co. (MN, 1910, p56) - D moored to P's dock
legally, stays tied on past allotted time b/c tempest kicks up and unsafe to leave;
boat keeps hitting dock and dock is damaged. P sues for trespass (since boat
there legally in 1st place, the actual trespass was the act of re-securing lines
during the storm).
i. TC - jury - P for $500; App Ct - affirm.
ii. D has a right to stay, but must pay for damage. Incomplete privilege. D
may, of necessity, use dock. However, he must pay for damage he caused
b/c D chose to stay after weighing the costs of staying and leaving.
iii. (Usually, events such as this would be covered in the mooring K - P could
charge more from each shipper to create something of an insurance fund
and avoid litigation.)
iv. Possibly incompatible w/ Courvoisier, who was liable for zero damage.
c. Surgeon dilemma (kill 1 to save 5) and Trolley dilemma (switching tracks kills 1
but saves 5). Difference? The Dr would not be responsible for the death of the 5
in the first case (no necessity), but trolley driver might be in the second
(necessity).
II. ACCIDENTAL HARMS (BACKGROUND ON NEGLIGENCE AND STRICT LIABILITY)
The constant questions is: what standard to use? Negligence or Strict Liability?
A. HISTORICAL FOUNDATIONS
1. The Thorns Case (UK, 1466, p94) - D cuts thorns on his property, but they fall onto
P's. D walks onto P's land to get them and P sues for trespass (an SL offense, as all
are at that time).
a. To sue, P must apply for a writ claiming (as rqd by law) a trespass "by force and
arms" ("vi et armis") which was "breaking the King's peace"
b. high cost of bringing case to court (big revenue source for crown) indicates that
this case was about more than just thorns. probably a property dispute
c. system subsequently divided into two types of actions: trespass (a direct
application of force) and trespass on the case, or case, (indirect, consequential
harms
d. Liability is still strict -- no need for any intention or any negligence. D's only
defenses are demurrer (no trespass as a matter of law), general denial (I didn't do
it), and affirmative defense (I didn't cause)
2. Scott v Shepherd (squib case) (UK, 1773, p107) - A tosses lighted squib into market,
falls on B's stall, B tosses to C, to D, to E, whose stuff is burned. E sues A for
trespass.
a. H: Determines that the damage was direct enough to sue for trespass;
intervening actors were acting in self defense alone and bear no liability
b. Indicative of difficulty in deciding btwn trespass and case. this one determined
to be trespass even though it seems quite clearly indirect.
3. NEGLIGENCE? Concept begins emerging as number of collisions between carriages
increase. Originally associated with case as a general cause of action. by mid-19th
century, pleadings focus on the facts. No longer a need, as before, to determine
4
form of action (trespass, etc) in advance
4. Intentional torts and non-intentional begin splitting in mid 19th century.
B. ANALYTICAL AND DECISIONAL FOUNDATIONS Two basic theoretical families in tort law:
o Deontological Theory - the purpose of tort liability is to redress violations of P's
rights, and to enforce a duty D to respect those rights. Focused on relative rights of
P and D individually (individual rights based system. Promotes corrective justice.
(Holmes, Epstein, Fletcher)
o Consequentialist/Welfare Maximizing Theory - no effort to repair the harm done
to P (as in deont.). Rather, tort liability should be imposed in order to enhance
social welfare. Judgment should focus on effect on society in the future, not
protecting rights violated in the past. (Coase, Calabresi)
1. Holmes, from The Common Law (1881)- Considers two theories of liability:
a. Austinian Theory (fault-based) - liability only arises when there is intention or
negligence. Only when D fails to meets society's standards
i. Holmes favors this reasoning.
b. Strict Liability - If action is voluntary and causes harm, D is prima facie liable
regardless of intent. (In this consideration, Holmes looks at SL applied
uniformly, b/c the distinction btwn direct and indirect harms is too indistinct to
have merit.)
i. Unfair system - D can be liable even if chain of events is very attenuated.
ii. Such expansive liability would halt progress. There would be no innovation
b/c of risk of liability for unforeseeable consequences.
iii. Unjust to make D unsure P for D's reasonable actions. If insurance is the
rationale behind selecting a certain type of system, hard to show that SL is
the best insurance-focused system. Private or govt insurance may prove
better.
iv. Relatively expensive - since the "bar is higher" under a fault-based system (P
must show D's negligence) fewer cases will get to courtrooms there. SL =
relatively many cases in court.
c. Notably, Holmes is not arguing against limited application of SL (as in
Blackburn's True Rule) but against a uniform system of SL. By this time, almost
no one supports uniform system of SL, so he is sort of picking on an easy target.
Still, he does raise the relevant issues
2. Epstein, A Theory of Strict Liability - argues in support of SL for any volitional acts
that fall into one of four categories ((1) force and compulsion, (2) fright, (3) creation
of dangerous condition, (4) invasion or trespass). Cases that fall outside of those
four should be judged under negligence.
3. Fletcher, Fairness and Utility in Tort Theory- Reciprocity of risk. D is liable when he
submits P to an unreciprocated risk. If risk is reciprocal, no liability. Applies to
intentional and unintentional torts.
a. Problem: Very hard to quantify reciprocal risks to see if they match btwn D and
P.
4. Coase, The Problem of Social Cost - (HANDOUT #1) The question should not be "How
to reward P and punish D", but rather, "how to get the most efficient solution".
Market, through individual proclivity for efficiency, will inexorably lead to the most
efficient outcome.
a. Individuals know what is good for them. In the absence of transaction costs, the
rule of liability is unimportant b/c efficiency incentives will induce the welfare-
5
maximizing approach in all cases. System of tort (no liability, negligence, SL)
irrelevant: parties will CONTRACT to reach optimally efficient solution.
b. Hypo - RR sparks damage crops 10. Spark arrest costs 4 leaving a residual
harm of 3. (This is clearly a cost-justified precaution b/c the cost (4) is smaller
than the avoided harm (10-3=7). Any precaution costing more than the amount
it saves is not cost-justified.
i. Negligence Standard - RR will take cost justified precautions (4) leaving
farmer with residual harm (3). (If RR didn't take precaution, it is negligent
and must pay for the whole damage (10)). Total cost = 7, residual harm
borne by farmer (P).
ii. SL. RR liable for any harm, but will still install b/c it is still cost-justified.
RR pays 4 for spark arrest and owes 3 (under SL) to farmer for residual
harm. Total cost = 7, residual harm borne by RR (D).
iii. No liability. Farmer will pay for the precaution, b/c otherwise he would have
to suffer the whole damage of 10. Now, he pays for arrest (4) and residual
(3). Total cost = 7. Residual harm borne by farmer (P).
iv. In all cases, total cost is reduced from 10 to 7.
v. Even if there are transaction costs (ie, cost of contract & negotiation),
efficient result will prevail. Precaution will be taken under any system as
long as total benefit (here 10-7=3) is greater than the transaction costs.
vi. Transaction costs (such as courts, etc.) can be lowered by forming a firm
employing both parties so that efficient results can be mandated w/o
negotiation. Federal statutes often put gov't in the role of a super firm.
c. Stewart hypo: what if RR profits are only 2 and cost of precaution is 9?
i. Negl: - precaution is not cost justified, so RR won't take it and will continue
to earn 2. Neg system allows RR to keep operating even though its profits
are lower than the costs it causes to society (the 10 borne by farmer).
ii. SL - RR must bear costs (10), which drive net profits below zero (2-10=-8).
Out of business under SL b/c it costs more than it benefits.
iii. Arguable that neg is the right system b/c RR's external benefits are very
large, and we don't want to drive it out of business.
5. Calabresi, The Costs of Accidents - The overall goal of a tort system should be to
minimize overall social costs of accidents (including the parties to a dispute and the
system itself). [Stewart's take on this in italics]
a. Minimize the cost of accidents
i. The cost of the harm - standard party of cost benefit analysis (with (b)(i))
ii. The cost of bearing risks - INSURANCE - People will generally pay more than
the true value of the risk to avoid it (i.e. $100,000 house, 1% per year chance
it'll burn=$1000 annual cost of risk. People will pay more than $1000 to be
able to recover from the harm)
FIRST PARTY LOSS INSURANCE - As in health insurance, the injured
party's insurance covers. Generally more efficient than 3rd party b/c here
there is no need to show any causation, while there, it is necessary to show
that the 3rd party caused the harm.
THIRD PARTY LOSS - As in car liability insurance, the injurer's policy
covers the injured.
Calabresi's point - there is something of a trade-off between the cost of
the harm and the cost of insuring against it.
b. Minimize the cost of reducing the accident costs
i. Cost of prevention/precaution - standard party of cost benefit analysis (with
6
(a)(i))
ii. Residual costs of insurance - IE, which form of insurance is cheaper? 1st or
3rd? Generally, 1st is cheaper b/c there is no added expense of determining
causation as rqd in 3rd.
iii. Other admin costs - Determination of "negligence" can be expensive certainly
more so than under SL where all that need by shown is harm (and causation).
SL means more claims are filed, but they are simple. Neg- fewer claims, but
they are complex.
c. So, which tort system is better, neg or SL? Hard to determine from this analysis
(too hard to quantify all these variables) so perhaps we should just base decision
on concept of fairness. After all, in our gut, we want D to bear the costs of his own
risky behavior, and we want P to bring the suit b/c he will do so more reliably than
a gov't bureaucracy.
d. HIGHLY COMPLICATED DETERMINATION. TOO COMPLICATED. NO WAY TO
RATIONALLY DETERMINE IF ONE IS BETTER THAN THE OTHER.
6. Key difference btwn NEGLIGENCE and SL:
a. Under NEG: plaintiff bears residual harm
b. Under SL: defendant bears residual harm
c. Coase & Calabresi: the liability system is only useful to the degree that one may
want to apportion the residual harm. Under either system, people will take the
most efficient action.
7. Brown(P) v. Kendall(D) (MA, 1850, p115) - One dog owner (D), trying to separate
fighting dogs, accidentally hits second owner(P), also trying to separate, in the eye
with stick. P sues for trespass.
a. App Ct overturns finding for P b/c of erroneous TC instruction stating D has a
duty to show he exercised due care. TC said D has burden of showing he wasn't
careless.
b. Error - incorrect to put the burden of proof on D. Instead, P must show that D
was negligent.
c. Establishes the negligence principle -- failure to meet an objective standard of
prudence
d. What system would the theoreticians apply?
i. Holmes (fault based) Negligence. Liability only with fault or intention.
ii. Epstein SL. P acted voluntarily, and under the rubric of force
iii. Fletcher Depends on definition of risk. If it is the risk of using a stick to
separate dogs, then SL, b/c D didn't reciprocate. If risk is defined as owning
a dog, then negl, b/c both parties created same risk.
iv. Incentivist (Coase) Doesn't matter. Parties will contract efficiently
v. Insurance Hard to determine whether 3rd party (result under SL) or 1st
(result under negligence) would be cheaper, although 1st party generally is
cheaper.
vi. Admin Costs Negl, b/c expensive to the system to bring suits in all those
non-neg cases
8. Fletcher v Rylands (UK, p120/123/126, 1865/66/68) - P, leasing land from Earl of
Windsor for coal mine, brings suit against D, leasing land from Earl for mill, b/c D's
reservoir, built by D's contractors, broke and flooded P's mines.
a. Ct of Exchequer - For D. No liability w/o negligence. Trespass is inapplicable
b/c this was not a direct harm. Real property (like personal property -- ie cars &
collisions) should be governed by P's showing of D's negligence.
b. Ct of Exch Chamber - For P. Strict Liability. Blackburn's True Rule: If D
7
brings a "mischievous" (dangerous) substance onto his property, "he does so at
his peril". Negligence is only appropriate if P had accepted the risk.
c. House of Lords - Upholds Blackburn's SL. D is liable b/c he caused the water to
pool. It was not a natural pooling of water (in which case he wouldn't be
responsible for bringing in the mischievous substance).
d. What system would the theoreticians apply?
i. Holmes (fault based) Negligence. Liability only with fault or intention.
i. Epstein SL. P acted voluntarily, and under creation of dangerous situation
ii. Fletcher Depends on definition of risk. If it is the risk of building reservoir
in mine area, then SL, b/c D didn't reciprocate. If risk is defined as big,
heavy industry, then negl, b/c both parties created same risk.
iii. Incentivist (Coase) Doesn't matter. Parties will contract efficiently
iv. Insurance Hard to determine whether 3rd party (result under SL) or 1st
(result under negligence) would be cheaper, although 1st party generally is
cheaper.
v. Admin Costs Negl, b/c expensive to the system to bring suits in all those
non-neg cases
9. Brown v Collins (NH, 1873, p132) - D was managing horses with due care, they took
fright, and trampled across P's land. P sues.
a. Judge: For D. REJECTS the Rylands SL rule b/c
i. Arbitrary to apply SL in some cases and not in others. Need to go all or
nothing.
ii. But, if we apply SL everywhere, progress will be curbed. Modern, industrial
society would be stunted by an SL rule. DECIDED ON GROUNDS OF
POLICY.
10. Powell v Fall (UK, 1880, p136) - Steam tractor, driven by D on public way with all
due care (no negligence), emits sparks which burn P's crops. P sues.
a. Bramwell, who upheld SL in Rylands, applies SL following that earlier decision.
b. Applies Blackburn's True Rule: anyone who brings a dangerous thing, does so
at his peril.
c. (BUT, in Rylands, Blackburn seemed to disallow SL in cases involving the public
way, as here. Blackburn wanted the rule only to apply when involving the D's
own land, not public way. Bramwell is greatly broadening SL's application here.)
11. Louisville Rail Co v Sweeney (KY, 1914, p147) - Train hits pole which hits gate which
hits P.
a. CT applies SL even though train was on the public way (Blackburn's exception)
b. No real import to this case. Just illustrative of courts applying varying
standards.
12. Stone v. Bolton (UK, 1950, p148) - P, walking on street, smacked by cricket ball hit
an improbably long way from cricket pitch. (D is cricket team) P sues on grounds of
negligence
a. TC - for D. // King's Bench - for P b/c risk was foreseeable // House of Lords for D
b. H of L agrees with lower court that risk was foreseeable, but determines that the
risk was so remote that D can't be considered negligent. (Negligence is the
standard b/c, a la Blackburn's True Rule, P was on public way. SL only applies
when P injured on own property.)
13. Hammontree(D) v. Jenner(P) (CA, 1971, p157) - P had an epileptic seizure while
driving, crashed through wall of P's store injuring P. P sues.
a. TC - for D; P appeals on grounds that jury instruction should have rqd SL
standard.
8
b. App Ct - Affirms, and holds that negligence is proper standard.
c. No negligence b/c the risk, while remotely foreseeable, was tiny.
(C. HANDOUT #2 - Factors relevant to Neg/SL determination for accidental harms
1. Unilateral Harm/Unilateral Care (Rylands bursting reservoir, Stone v Bolton) strong case for SL
a. Welfare-max: ensure that total societal benefit is greater than total cost; if not
shut down (as described in Coase section, negl can allow an enterprise w/
greater total costs than benefits to keep operating b/c the farmer is forced to
bear residual harms)
b. Deontological: the risk creating enterprise should bear the cost
2. Unilateral Harm/Bilateral Care (i.e. Powell - driver or farmer can take care) complicated choice
a. Welf: the party that can more cheaply avoid the harm should do so. IE - if "RR"
can bear cost of precautions more cheaply, use SL; if "farmer", use no liability
(market will induce him to take any cost-justified precautions; an SL rule would
force RR to take more expensive precautions) (Of course, if there are zero
transaction costs, parties will negotiate to an optimally efficient outcome
regardless of regime)
b. Deontological - probably for SL RR created the risk that harmed the farmer, so
RR should pay.
3. Bilateral Harm/Bilateral Care (ie a highway collision) - negligence. This is a classic
game theory set up under SL, a party will always be better off not taking the
precaution, which will lead to no precautions, even though TOTAL societal cost
would go down if precaution were taken. Under negligence, parties are only
responsible for harms negligently created, and will therefore take precautions to
avoid liability. Under negl, both parties get the benefits of caretaking and there is
no inducement to try to free-ride (b/c if you do you'll be negligent and stuck with
total cost)
a. Welf: SL will not promote caution (and societal savings) but negligence will
b. Deont: Both parties created the risk, so both should be liable negligence
4. Role of Location of Activities
a. P on his own property and D on his own property
i. SL - Rylands
ii. Negligence - Losee v Buchanan (NY, 1873,p134) - repudiates Rylands, boiler
on D's land causes harm to P's- no liability b/c precaution taken, Turner v
Big Lake (TX, 1936, p135) - rejects Rylands b/c storage of water in reservoirs
is a "natural" use of land in TX
b. P on own property, D on public way
i. SL - Powell v Fall, Louisville
ii. Negl - Hammontree
c. P on public way; D on own property
i. Negl - Stone v Bolton
ii. SL - (we didn't read any)
d. P and D both on public way
i. Negl - collision cases
5. Nature of Parties' Activities - It is also important to consider the comparative
degree of risk the parties' activities create (see list on handout)
III. NEGLIGENCE - What is the duty of care (step 1 of P's PF case)? - Can be shown by BPL,
custom (occasionally), statutory violations, res ipsa loquitur. Pockets of SL w/n negl are
klutz, negligence per se, respondeat superior.
9
A. THE REASONABLE MAN
1. Vaughan v Menlove (UK, 1837, p168) -- D, knowingly, built dangerously flammable
haystack near P's land. He was told of the danger and didn't repair. Burned,
destroyed P's barn & cottages, P sues.
a. H: TC for P; App ct affirms. D claimed that he only needed to meet a subjective
standard of reasonableness. Ct disagrees -- he must meet the standard of a
"reasonable man"
b. Applying subjective standard case-by-case would be too complex; such a
standard is too vague.
c. Important for others to be able to know what standard everyone may meet
d. CT: D bound by a general duty of care; jury determines if he breached. Based
on community standards. (Farmers have learned over hears that such stacks
are dangerous.)
e. Good example of risk created by ins: farmer not so careful b/c he's covered by
first party loss.
f. (No SL as in Blackburn's True Rule, b/c hay grows naturally, not a substance
brought in.)
2. POCKET OF SL -- A klutz who is simply unable to meet community standards is
still bound by them. For him, this is essentially SL.
3. Holmes, The Common Law, (1881) p 173 -- The standard must be objective
reasonableness. B/c:
a. Difficult to determine everyone's individual abilities and limits
b. To avoid stunting progress, society needs to be able to assume a known
standard of care which everyone must meet.
c. If subjective standard allowed, the general standard will slowly erode as people
continually downplay their own abilities in an effort to avoid liability.
d. Exceptions for "distinct defects" such as blindness; infants (if they are the
plaintiff); "insanity is a more difficult matter to deal with, and no general rule
can be laid down about it."
e. Klutzes' inabilities may be "allowed for in the courts of Heaven", but don't lower
his duty now.
4. Roberts(P) v. Ring(D) (MN, 1919, p175) - D, 77-year-old driver, hits 7-year-old who
ran in front of car. P sues. TC finds for D, and P appeals on improper instruction
re: negligence of old man and child. App CT reverses TC judgment.
a. CT: D's age should not be relevant. He was driving a car, and therefor must
meet reasonable man duty of care so that others no what to anticipate from him.
D saw the boy in time and had a duty to stop, which he breached.
b. CT: P, however, only needs to meet the standard of a 7-year-old, not adult.
Therefore, there is no possibility of a contrib. negl. defense, b/c he did not
breach.
i. This is an exception to the general standard of care all must meet. Ct
suggests, however, that it is only available b/c he is P, not D. If he were
injurer, he must meet general standard.
ii. Juveniles face lower standard in this situation b/c his negl while a P
generally only harms self, while his negl as D hurts others. (RS: generally,
kids have lower duty as both D and P)
iii. Ct acknowledging that children need room to learn, develop.
iv. Daniel v Evans - (NH, 1966, p 177) 5. Breunig(P) v American Family Insurance Co(D -for crazy woman). (Wisc., 1970,
p182) -- Crazy woman crashes car after God took over the steering wheel, injuring P.
D defends on grounds that she was not neg, but insane.
10
a. TC: for P; App Ct: for P.
b. She's liable b/c she was able to appreciate the harm her actions might cause.
She's be liable b/c she should have foreseen this possibility. D claims that she
was temp insane; ct - that's up to jury to decide based on expert testimony.
c. As long as "insanity" is foreseeable (ie not sudden and temporary), it is not a
exception to duty of care.
6. Fletcher v. City of Aberdeen (WA, 1959, p185) - City worker forgot to replace
construction barrier, and blind P falls into ditch on street.
a. I: Does city owe a higher duty of care to a blind man? Ct: Yes.
b. City claimed that P was contributorily negligent b/c of blindness, and that city is
not liable.
CT: no, P is not contr. negl. A reasonable person in the same
circumstances would have fallen.
i. Reasoning: the "cost" of a blind man walking around are lower than the
costs of him staying home always. (on the other extreme, costs of him
driving car are higher.) Standard of care for the blind is adjusted based on a
cost benefit analysis.
7. Exceptions to negligence: youth (Roberts v Ring), physical handicap (Fletcher v. City
of Aberdeen); occasionally for the insane, (as long as the insanity is temporary and
unforeseeable (Breunig)
8. No exception for low intelligence, klutziness, wealth/poverty:
a. WEALTH. If it costs $600 for a liner to save $350 in flood costs, is wealthy D, to
whom $600 is low, nglgt if not installed? No; it is still cheaper to pay $350 in
damage than $600 for the liner.)
b. POVERTY. Even if poor cannot afford cost-justified precaution, he'll be nglgt for
not installing. (But, he is prob be judgment proof.) Poor have no right to impose
greater risks than others.
B. THE CALCULUS OF RISK - First method of determining reasonableness (negligence)
1. Blyth(P) v Birmingham Water Works(D) (UK, 1856, p 189) -- Water floods house due
to prior ice damage to a water plug on the public way. P sues water works co. for
negligent maintenance of plug.
a. TC - P; App Ct - reverses b/c D did everything a reasonable person would have
done. No breach of duty b/c the likelihood of such a frost was extremely remote.
(No SL as in Blackburn b/c the pipes were on the public way)
b. To prevail, P would have to prove D was negligent (breached reasonable duty).
Alternate design not good enough (severity of frost so rare). P also assert that D
should have inspected; ct - P had just as much of a duty to inspect as D did (ie easier for P to check the one plug than for D to check every one in the city)
c. If decided today, courts would let a jury make the call as to whether D breached
duty of care.
2. Cooley v Public Service Co (NH, 1940, p197) C P on phone injured by terrifically loud
noise caused by power cable that broke in storm and fell on phone cable. P sues
power co & tel co for negligence on ground that Ds did not take cost-justified
precaution. (No SL - wires on public way.)
a. TC - jury - tel co has no liability, but public service co is liable. App Ct reverses judgment against power co. D not nglgt b/c cost of precaution was not
lower than the cost of injury.
b. Ct - P has burden of proving that D had a cost-justified option; P did not
prove -- P's "basket" plan may have been safer for people on the phone, but more
dangerous for people on the street -- overall cost of precaution are greater than
costs avoided.
c. Under nglg (here), ct determines which precautions are cost-justified. Under SL,
the D does.
11
3. Eckert v Long Island RR (NY, 1871, p191) - P, deceased's estate, suing D b/c man
was killed while saving child from oncoming train. Grounds - train going too fast.
a. TC - jury - P (essentially saying P, by going too fast, breached its duty to infants
on the tracks and their rescuers); D appeals on grounds of contrib negl (affirm
defense); App Ct - Affirms TC.
b. Did he have a duty to rescue? No. American ideals of autonomy & liberty
preclude duty to save.
c. Was he nglgt in trying to rescue? No. He acted reasonably b/c the benefit
gained by taking the risk was greater than the potential cost (calculated
from pre-accident perspective). He is nglgt only if the cost to society of the risk
is greater than the benefit.
d. Ct also rejects D's "assumption of risk" defense (ie he acted willfully in face of
known danger) on moral grounds -- he acted to save a human life.
4. BPL (Burden of precaution < or > Probability of harm x Loss) - Precautions must
be taken (under nglg standard) only when B<P*L. From Learned Hand's opinion in
US v Carroll Towing ('47)
a. Paris v Stepney Borough Council (1951, p202) - one-eyed P lost his one eye. Ct
determined that in his case, D should have provided goggles b/c the cost (P*L)
was significantly higher than for two-eyed workers (even though risk was lower - half as many targets). Cost certainly higher than the cost of goggles.
b. The ct/jury must determine (P*L) and (B), including monetary costs and
disutility, only to the extent that the actor should have reasonably been aware at
the time.
c. BPL does not take activity level into account, even though it is relevant to the #
of accidents and, therefore, total cost. However, the equation is already too
vague to include another ambiguous variable. (Under SL, where cost analysis is
internal to actor, actor will consider activity level as part of total cost.)
d. Rinaldo v McGovern (NY, 1991, p208) - golf ball smashes car window. Ct finds
for D (as does app ct and ct of appeals) b/c the risk posed by golfer was not
unreasonable.
e. Handout #3 - Elements of Determining negligence -- Trier of fact must:
i. Identify all risks D should have known of
ii. Determine magnitude of those risks (ie probability, harm)
iii. Identify possible precautions D should have known of (P must show)
iv. Determine magnitude of burden of precaution ($, disutility [ie drive slower],
increased risk to others [ie Cooley])
v. Determine when unreasonable to fail to take precaution. Activity level
considerations generally are not included.
f. Under SL, trier of fact only determines amount of harm caused (and bills D). D
will undertake all the other steps in (and will consider activity level) in attempt
to find efficient alternative.
C. CUSTOM - A second method of determining reasonableness (negligence) [eg Vaughan];
such determination can be applied to D (nglg) or P (contrib. nglg)
1. Titus v Bradford, B & K.R. Co. (PA, 1890, p211) - Broad-gauge car held onto narrow
gauge car with customary wood blocks tips off of holding car and kills decedent.
Estate sues for negligence.
a. H: TC - jury - P for $5325; App Ct - Reverse. No negligence b/c D's meets
industry custom. Custom is the equivalent of non-negligence.
b. (P could have shown negligence in a variety of ways -- too fast, no rule forbidding
people from standing on car, better security device needed, better inspections
needed.)
12
c. P claimed cars shouldn't be used AT ALL; CT - it is allowable b/c it is standard
practice. (If RR decided not to carry such cars, workers would be out of work.)
d. (In a perfectly functioning market, CUSTOM reflects most efficient use of
resources [RR paying for costs of injuries up front by paying premium danger
wages])
2. Mayhew v Sullivan Mining Co (ME, 1884, p213) -- P injured in fall through
unmarked, unprotected ladder hole in mine; sues mine for negligence.
a. H: TC - jury - P for $2500; App Ct - affirmed.
b. Ct holds that custom is irrelevant; not even evidence of non-negligence.
c. (Reconcile Titus and Mayhew? (1) In M, P is not an employee and is therefore
unfamiliar with risks; (2) precaution in M very easy [put up a light] while very
hard in T; (3) in T, employees may already be compensated through premium
pay.)
d. Custom is a poor excuse for negligence b/c (1) employees may have no
alternatives (ie no real high risk premium, (2) employees & employer may not be
fully aware of risk [ie wage not reflective], (3) employee unlikely to invest any
premium in insurance, (4) no benefit to anyone other than employees [ie
homeowners along rail line not protected]
3. The TJ Hooper (Fed NY, 2d cct// 1931, 1932//p214, p216) -- Tugs w/o radios are
lost at sea. P charges they should have carried radios.
a. H: TC - for P; D appeals on grounds it met custom; App Ct - (L. Hand) - affirms
b. Not carrying a radio violates duty of care regardless of custom b/c it is inefficient
to go w/o radio. Radios are very cheap and very useful. (Essentially, BPL
overrides custom.)
c. (Current law - btwn Titus and Mayhew -- custom is one of many factors
considered by a jury; its neither conclusive nor irrelevant.)
D. STATUTORY VIOLATIONS - how negligence relates to statutory compliance
1. Key Question - what was the intent of the legislature? Did legis intend for crim
statute to cover common law crimes?
a. Compliance = Non-negligence? No, compliance is generally not a common law
defense.
b. Non-compliance = negligence? Two theories:
i. Statutory Action: Liable for negligence only if expressly or impliedly written
into statute.
ii. Common Law Action: Adopt statutory duty of care as the common law
standard even if there is no common law precedent nor express statutory
authority to do so.
2. Statutory violations are only actionable when P meets burden of showing three
things. (Stringency and interpretation of these three varies from jurisd to jurisd.)
a. Protected Party Benefits. Only those protected by the statute can use it to
show D's negligence
b. Risks Covered. Only available for risks within the purpose of the statute. [ie,
in Gorris v Scott (UK, 1874) - penning statute imposes no liability for unpenned
ship swept overboard b/c purpose of law was to prevent disease, not overboard.]
c. Weight Accorded to Statute. P must apply appropriately: negligence per se,
prima facie negligence, or just evidence, depending on the statute.
i. NEGLIGENCE PER SE - negligence mandatory as a matter of law. D (or P in
this case) is not permitted to raise affirmative defenses to charge of
negligence. [Thayer supports this one: juries should have no right to
second-guess the will of the legislature. Also, nglg per se is more efficient -no need for a jury] [however, unfair b/c statutes are often too sweeping and
legis didn't intend to ensnare all; may cause enforcement when society
13
doesn't want it.]
ii. PRIMA FACIE NEGLIGENCE - the showing of statutory violation fulfills P's
prima facie case, but allows room for D's affirmative defenses. [Perhaps
better than per se; allows P a "boost" based on D's violation, but still allows
for affirmative defenses. This is the theory used most predominantly
today.]
iii. EVIDENCE OF NEGLIGENCE - violation only evidence of negligence; P must
fully prove and complete the rest of the PF case.
WEIGHT ACCORDED CASES:
3. Osborne v McMasters (MN, 1889, p252) -- D's employee sold decedent poison w/o
labeling it as such as rqd by statute.
a. H: TC - P; App Ct - Affirm: "It is now well settled, certainly in this state, that
where a statute of municipal ordinance imposes upon any person a specific duty
for the protection or benefit of others, if he neglects to perform that duty he is
liable to those for whose protection or benefit it was imposed for any injuries of
the character which the statute or ordinance was designed to prevent, and
which were proximately produced by such neglect." Negligence per se.
3. Martin v Herzog (NY, 1920, p259) -- P, driving buggy w/o lights as prohibited by
statute, is hit by D's car. P sues, and D claims contrib negl as evidenced by
statutory violation.
a. H: TC - jury (instructed that violation is only evidence of negligence) - for P; App
Ct & Ct of Appeals - Reversed - for D.
b. Instruction below was erroneous. Violation IS negligence, not merely evidence.
Proof of violation here is proof of P's contrib negl; negligence per se.
4. Brown v Shyne (NY, 1926, p262) -- Unlicenced chiropractor paralyzes patient.
a. H: TC - jury (instructed violation of licensing law = evidence of negligence) - P;
App Ct- reversed; violation is not evidence in this case, b/c the violation is not
the thing that caused harm
b. Subsequent NY statue (p265) makes violation prima facie negligence.
5. Richards v. Stanley (CA, 1954, p 268) -- Ordinance disallows people from leaving
keys in cars, but expressly stipulates that a violation cannot be introduced into a
civil case. P injured by thief who stole car after D left keys in it. (P doesn't go after
thief b/c he's judgement proof)
a. H: For D. Violation is no grounds for negligence.
b. Despite BPL logic of finding negligence (precaution [removing keys] is much less
costly than the harm), CT holds for D b/c to do otherwise would also hold him
liable if he lent the car to his friend. Further, no real proximate causation b/c
the thief voluntarily intervened.
c. (In today's courts, likely to follow the BPL analysis.)
6. Ross v Hartman (Fed, 1943, p266) -- D left keys in truck; stolen, thief hits P. Key
statute violated.
a. H: TC for D; App Ct - Reverse. Here, court gives statute negligence per se
weight. No need to even send it to a jury.
RISKS COVERED CASE:
7. Meihost v Meihost (WI, 1966, p 269) - same situation; no negligence b/c court holds
that statute designed to prevent theft, not promote safety. IE violation not within
Risks Covered.
PROTECTED PARTIES CASES:
14
8. Vesely(P) v Sager(D) (CA, 1971, p270) - D, bartender, sold liquor to O'Connell,
knowing O'C getting ready to drive down mountain. O'Connell drank and drove and
hit P. DRAM SHOP LAWS
a. Does D's statutory duty extend only to customer, or also to 3d party?
b. CT holds for D. No liability b/c 3d party's intervening act precludes finding of
D's prox caus.
c. Varied holdings in varied jurisdictions re: extent of statutory duty.
9. Coulter v Superior Ct (CA, 1978, p273) -- D, non-commercial hostess who served
booze, held liable for damage her guest did to P. This is a huge expansion of
statutory liability's applicability. (Many other cases and also subsequent CA legis
overrule this decision. Now, generally no liability on host for 3d party injuries. In
CA, violation = prima facie negligence.)
E. JUDGE AND JURY 1. Are juries useful? (Holmes - they are useful, but they should be subject to judge's
control)
a. Deficiencies of jury: trials are longer and more expensive; imposes costs on
jurors; jurors may be prejudiced; jurors may be incompetent; possible that
jurors ignore the rule of law in deciding cases; similar cases may end up in
inconsistent/unfair results
b. Control over juries: Judge can provide instruction; judge can call for a special
(multi-questioned) verdict; judge can determine what evidence reaches the jury;
judge can give a directed verdict ignoring jury (ie judgement nov) (eg Titus);
attorneys' work in jury selection
c. Utility of jury: best yardstick of community values; long standing (read:
expected) feature of judicial system; makes parties feel more comfortable about
decisions.
d. ?-able how much power judge (finder of law) should have over jury (finder of
fact), especially since determination of negligence is a question of fact and law.
(RS: our system actually does frequently let juries consider matters of law and
actually set legal precedent by determining societal standards.)
2. B&O RR(D) v Goodman(P) (US Sup CT, 1927, p280) - D train hit P's car at crossing.
On appeal, D claim's P's negligence caused.
a. H: Sup Ct reverses lower ct, holds for D. Justice Holmes holds that since no
facts are disputed, there is no need for a jury, and that it is only a question of
law. In view of SupCt, P's undisputed actions were clearly unreasonable while D
clearly proceeded w/o negligence.
b. Today, a determination of negligence would be made by the jury, not the court.
F. RES IPSA LOQUITUR
1. Byrne v Boade (UK, 1863, p292) -- P, on public way (ie not an SL situation) hit by
falling flour barrel. Flour dealer upstairs, but no clear evidence that it dropped the
barrel.
a. H: TC - jury awards L250 to P, but judge overrides b/c no evidence of D's
nglgnc. AppCt - reverses lower court judge, finds for P on grounds of RIL
b. RIL allows for liability based on inference formed by showing mere
circumstantial evidence -- it is more likely than not that the harm was caused by
D's negligence. Available when direct proof is not possible.
c. (RIL has the force of a prima facie case. D can present affirmative defenses and
attempt to prove that he wasn't negligent.)
d. (Prosser on Torts - for RIL, cause must be under D's exclusive control - stricter
Rsttmnt - evidence must substantially eliminate P and 3d parties as cause (not
exclusive) - looser)
2. Colmanares Vivas v Sun Alliance Insurance Co. (1st Cct (Puerto Rico), 1986, p299) -
15
P injured on malfunctioning escalator at airport.
a. H: TC - directed verdict for D b/c no ev. of nglg; AppCt - Reverse and remand
b/c of RIL.
b. Test for RIL - (this court's application) P must show:
i. Accident must be of a kind generally caused by nglg - P has burden of
showing that such accidents are more likely the result of negligence than
non-negligence. D has the burden of showing that it acted w/o negligence in
any case.
-- EG - Assume 1000 'actions'; 10% of which are performed negligently,
90% non-negligently. Accident rate w/ negligence is 5%, w/o negligence
its 0.6%. So, 100 x 5% = 5 accidents caused by negligence; 900 x 0.6%
= 5.4 accidents non-negligent out of 1000. In this case, RIL does not
apply. If more were due to negligence, then RIL should apply. (Such
clear statistical background is almost impossible to discern, making this
a tough test to apply in practice. Further, a jury, even w/ RIL
instructions, would probably hold D responsible in a case like this
statistical example -- very close to SL)
Ct determines that this is an accident more likely caused by negligence.
ii. Cause must be under court's exclusive control - escalator mntnce is a nondelegable responsibility and therefore under D's exclusive control even though
they contracted out mtnc service.
iii. P must not have voluntarily contributed to accident - P did not contribute
3. Grady, Res Ipsa Loquitur and Compliance Error, 100% vigilance is impossible to
maintain b/c costs of paying such constant, undivided attn are too high. Some
lapses in attention are "cost-justified" and therefore non-negligent. However, juries
can't tell which lapses are nglgt and which are not, essentially imposing SL on all
lapses. Non-nglg lapses increase as technology reduces other causes of accidents.
G. VICARIOUS LIABILITY/RESPONDEAT SUPERIOR
1. A pocket of SL w/n negligence system. Employers are STRICTLY LIABLE for the
NEGLIGENT acts of their employees (but not their contractors). (another pocket of
SL - the klutz who cannot meet community standards).
a. Resp sup limited - if employee's action is totally outside the realm of employ, no
liability.
b. Public Policy rationale - no agmt on why resp sup is needed. Perhaps just b/c of
a feeling of moral obligation -- with power comes responsibility. (Other ideas employer in best position to prevent? No, dock owner was in this case.
Enterprise can better bear the costs than can the employee? But not all
enterprises are as huge and rich as the US govt.)
c. No definitive SupCt ruling re resp sup as it applies to sexual harassment, but RS
believes that if harasser has power over victim b/c of the employment, resp sup
should apply.
2. Ira S Bushey & Sons, Inc. v US (2d Cct, 1968, p450) - Drunk sailor (employed by
US, D) opens dry dock valves submerging and harming ship and dock. P, dock
owner, sues.
a. H: TC -for P on social and cost-benefit grounds; AppCT (Judge Friendly) affirms on grounds that employer is responsible for all acts of employees that
aren't separate from employ.
b. Friendly - a test based on (1) employee acting in employer's interest is too
narrow, (2) employee's action reasonably foreseeable is too broad. New, 2-part
test:
i. Employees actions reasonably foreseeable to employer.
16
ii. Employees act must arise out of the activities characteristic of employer's
enterprise
IV. CAUSATION - Why is this determination needed at all? Isn't negligence alone enough for
liability? No, no liability for creating risk b/c there would be too many Ps and, under a
theory of corrective justice, there can only be remedy for harms actually inflicted.
P must show BUT FOR and PROXIMATE causation
A. CAUSE IN FACT ("BUT FOR") - Would the injury have occurred if D had taken care?
1. NY Central RR(D) v Grimstad(P) (2d Cct, 1920, p469) - Employee who can't swim
knocked overboard and drowns. P charges negligence b/c of lack of life saving
buoys on boat.
a. H: TC - jury - for P. App Ct - Reverse, no proof that buoy would have saved life.
Not enough evidence of causation to send to a jury.
b. (D may have had a BPL -- cost-justified -- duty to have buoys [negligence
standard], but their role in causing the harm is a separate inquiry.)
c. The But For test - counter-factual -- "BUT FOR the absence of the buoy, would
he be alive?" Would the buoy have save his life? P required to show, and jury
must find, that cause is more probable than not (51%) [ie - statistically, more
than half of those who would die w/o a buoy would be saved if one were used.]
d. There are always lots of "but for" causes of any injury -- ie barge was hit, he has
a job as a bargeman, he can't swim, he stood too close to edge, etc. To be
actionable, the act must be both negligent and a cause.
2. Richardson v Richardson-Merrell (DC, 1986, p475) -- Mother claims baby harmed by
pregnancy drug
a. H: TC - jury - for P; D requests nov, TC rejects; AppCT - grants judgment nov to
D on grounds that there is no convincing evidence that the harm was "more
than likely" caused by the drug.
b. (Big ? - Should judges overrule juries that heard the same expert testimony that
the judge did?)
3. Herskovits v Group Health Cooperative (WA, 1983, p482) - Physician's misdiagnosis
of P's illness led to loss of time and therefore an increased risk of death.
a. TC - Granted D's summ j motion b/c held that P "likely" to die anyway; AppCt reversed; jury should decide.
b. Pre diagnosis - 64% chance of death, after misdiagnosis - 75% chance of death.
increases chance of death by 14% (or 20% of the total likelihood)
c. LOST CHANCE DOCTRINE - An exception to "more likely than not" standard in
cases of increased risk of death.
4. Handout #4. Causation re: pollution. Assume: cmmty of 20,000, 80 cancers per
year, D's pollution pushes rate to 100 per year, imposs to pinpoint cause of each
cancer. Under standard causation rules, no recovery b/c in any particular case, D
is only 20% likely to have caused, and 51% is needed to show but for causation.
Solutions (non of which is particularly appealing)?
a. Shift burden of proof to D -- this will force D to pay full recovery to all 100
victims, b/c he'll be unable to prove which 20% he caused. (D's liability is 5
times greater than what he caused; victims recover fully as do cancer victims not
caused by D) - rejected by courts
b. Proportionate Liability for Injury - D must 20% recovery to each victim. (D's
liability is equal to harm caused; cancers due to D only recover 1/5 of harm,
other patients recover for harm not caused by D at all) - rejected by courts,
except in medical cases
17
c. Liability for Risk -- Each resident recovers for D's created risk, ie - liability for
total harm spread among whole cmmty. (D's liability = harm caused, victims of
D's pollution recover only 1/1,000 of harm) - rejected by courts
d. In reality, no liability here. Hard to apply liability in pollution situations b/c it is
hard to show causation. A failure in the tort system. (Solution = legislation).
Reconcile w/ Herskovits?
i. Easier to get accurate probability figures in medical situations.
ii. In medical case, P is an individual; in pollution, P is a class.
iii. We know P was harmed in medical case, hard to be sure any particular P
was actually harmed in the pollution situation.
e. INDETERMINATE PLAINTIFF PROBLEM. How to properly grant recovery when it
is unknowable who was harmed? (Compare to indeterminate defendant
problem.)
I Love You Bobo
B. PROXIMATE CAUSE - Second step of causation part of PF case - prox cause limits but
for cause
1. Ryan(P) v New York Central R. Co.(D) (NY, 1866, p491) - D sets fire on own land,
burns own sheds, spreads to P's home (130 ft away) and subsequently several other
homes. (Private land, so why not SL? B/c US courts have rejected Blackburn's
True Rule.)
a. H: TC, AppCt, CtofApp - for D b/c cause of harm to remote.
b. Undoubtedly, D's act was the "but for" cause. But, ct holds that D is only
proximate cause of the burning of the first building. [Forcing D to insure against
all subsequent harms (3d party) much more expensive than getting everyone to
carry 1st party. Holding D liable would stunt progress. Also, if there is no limit
to D's liability, no one would be willing to insure him.] In order not to stunt
commerce, D's liability must be limited. (Courts would decide otherwise today)
2. Proximate cause based on four branches (four tests). Different judges/jurisdictions
apply one some, part or all of these tests:
a. Foreseeability - Was the harm foreseeable to a reasonable man before the
accident occurred? (Test based on pre-accident considerations.)
b. Directness - Was there a direct link btwn D and harm? (Test based on postaccident considerations. This is the test, along w/ substantial factor, most
commonly applied in the US. Determined by the JUDGE) Intervening causes
that may "break the chain" of causation include:
i. natural - wind, tornado, etc. (PRECLUDES PROX CAUSE)
ii. human - non-negligent response to an emergency (ie EMT's acts do not limit
D's liability) (PRECLUDES PROX CAUSE)
iii. impulsive - rescuing, jumping from dangerous situation (PROX CAUSE STILL
AVAILABLE (eg Tuttle v Atlantic City RR, where D liable when P hurt fleeing
derailed train; exception (no liability) in Mauney v Gulf Refining Co., where P
tripped over her own chair fleeing burning truck - truck not liable.)
iv. intervening negligence - Prox cause still avail if harm resulted from "the
ordinary course of things" after D's act. (The City of Lincoln)
v. coincidence - PRECLUDES PROX CAUSE (eg Central of GA Ry. Co v Price railroad nglgtly failed to drop P off at stop, put her up in hotel, lamp in hotel
exploded injuring P. Ct - no proximate causation.)
c. Duty of Care - D only liable for harms caused by risks that D had a duty to
account for. (This is clearest in statutory cases.) If harm caused by a risk D
18
had no duty to protect against, no liability. If harm caused to a P that D had no
duty to protect, no liability.
i. In Gorris v Scott, D had no duty to prevent sheep from washing overboard.
ii. Berry(P) v Borough of Sugar Notch(D) (PA, 1899, p496) - P, speeding in
violation of ordinance, hit by falling tree. P claims D was nglgt in not
removing tree; D claims P's violation of ordinance precludes D's liability. TC
and AppCt - for P b/c his violation played absolutely no role in the harm. No
relation btwn the violation of duty of care and the harm.
d. Substantial Factor - Comes from Andrew's dissent in Palsgraff - D's act must be
a substantial factor in the harm caused. With directness, this is the most
common test in the US. (Determined by JURY). This test is fuzziest of the three,
and often leads to juries confusing 'but for' and 'substantial' causation, leading
Ds to greatly dislike it.
3. In re Polemis & Furness, Withy & Co. (UK, 1921, p 509) - P's boat damaged when
D(charterer)'s employees negligently drop wooden plank into hold, which caused
sparks, ignited petroleum, produced explosion.
a. H: Arbitrator - P for L196,125; Reaches CT, which holds that the harm fulfills
the directness test, and D is therefore liable.
b. D argued that forseeability should be the test, and that this harm was
unforeseeable. P argued for the directness test -- no intervening causes.
4. Palsgraf v Long Island RR (NY, 1928, p512) - P, on platform, injured when
passenger's package explodes as D's employees help him on board moving train. P
claims D negligent for helping passenger onto moving train. (Passenger negligent,
too, but P goes after D b/c of deep pockets)
a. H: Cardozo: - Reverses lower finding for P; D wins b/c no duty to protect against
unforeseeably small risks (Card has blended duty and foreseeability tests)
b. Directness Test? Liable, no interfering causes. Foreseeability Test? No liability
b/c P was far away and no one knew the package held fireworks. Duty? No
liability, b/c no duty to protect against such remote risks (Card's analysis).
c. Andrew's dissent: Impossible to draw a clear line in determining prox cause.
Rather, need to rely on intuition and general feeling of fairness. Better test: D's
act must be "a substantial factor" in causing the injury.
PROXIMATE CAUSE AND EMOTIONAL DISTRESS - classic example of a changing
doctrine in tort
Emotional distress claims usually come from women, probably b/c they are
more commonly caring for the children (or fetuses) who are directly injured.
Change over the years reflects a change from societal view that women's
emotional distress is hysterical to understanding that emotional distress is
legit.
5. Mitchell(P) v Rochester Railway Co.(D) (NY, 1896, p543) - D's horses charge close to
P, frighten her w/o touching her, miscarriage ensues. (Arguably, a very
patriarchical decision.)
a. H: Ct - no liability for fright/emotional distress even it clearly is the foreseeable
and direct cause of the harm. No liability for negligence unless there is direct
physical injury. (if there is direct physical injury, then related emotional distress
is actionable)
b. Any harm, physical or emotional, that is based on fright/emotional distress, is
not considered proximate and is not recoverable unless there is also a direct
physical harm.
c. Court's rationale - fear of fraudulent claims of emotional distress.
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6. Dulieu v White & Sons (1901, UK, 545) a. Ct - harm caused by fright can be recoverable. There is liability w/o physical
contact if P was in the "zone of danger", defined as at substantial risk of physical
contact.
b. Reason for the shift - (1) fear of fraud is a terrible reason to deny recovery -courts can weed the bad ones out, and (2) fear does cause some genuine harm
7. Dillon v Legg (1968, CA, p546) - Driver kills child; mother and sister, not in the
"zone of danger", sue for nervous shock.
a. CT - allows mother's recovery b/c she was in proximity of accident. Abandons
"zone of danger" test and leaves law w/o any clear line btwn liability and no
liability
b. Ct considers "zone" to be arbitrary, and replaces it with an (arbitrary) 3-part test
based on foreseeability: (i) physical proximity, (ii) closeness of relation, (iii)
directness of injury.
8. Other cases:
a. Thing v La Chusa (CA, 1989, p553) - Mother did not witness injury to child. Ct
refuses recover and tries to draw a "bright line": in the absence of physical
touching, damages available only if P (1) is closely related to the victim, (2)
witnesses the accident and is aware of the harm, and (3) as a result, suffers
emotional distress beyond that of a disinterested witness.
b. Tobin v Grossman (NY, 1969, p552) - P only heard child's accident, didn't see it.
Ct - no proximity, no recovery.
c. Elden v Sheldon (CA, 1988, p 553) - No recovery for harm to partner in
unmarried couple. Relation not close enough.
d. CURRENT LAW - The Thing arbitrary line does general rule. Why? If too much
recover, the pool of insurance assets will dwindle and no one will recover. Need
to put a limit somewhere.
V. AFFIRMATIVE DEFENSES BASED ON PLAINTIFF'S CONDUCT - D can affirmatively
defend based on P's nglgnc, lack of causation, lack of injury. D has burden of proof for
each of these affirmative defenses.
A. CONTRIBUTORY NEGLIGENCE - Handout #6. A contrib neg rule gives P an incentive to
take care, too. Under contrib neg system, both will take care, b/c if P does not, there is
no recovery; if P does and D does not, D is liable. Both will take care. (But, both will
take care w/o this rule too - if D takes care, P will take any cost-justified precautions
b/c D's care bars any recovery.) Then what's the purpose of the rule? CORRECTIVE
JUSTICE - illogical to make D pay for a harm partially of P's own making.
NEGLIGENCE
1. Butterfield v Forrester (UK, 1809, p320) - P, riding too fast, is thrown from horse
while trying to avoid an obstacle D negligently placed in the road.
a. H: TC - no recovery b/c P's contributory negligence was a cause. (1st case for
this doctrine.)
b. Rationale: Even though D nglgt, P would not be hurt if he had not been nglgt.
(Implicit rule: any contrib neg on P's part bars any recovery.)
NEGLIGENCE (CAUSATION)
2. Beems v Chicago, Rock Island, Peoria RR (IA, 1882, p321) - Deceased went btwn
cars to uncouple, comes out to tell driver to slow, goes back in, foot gets stuck,
killed. Estate sues.
a. H: Ct- no contrib negl b/c he could have reasonably expected driver to slow
down. AND his foot may have been stuck, but not due to his own negligence. (D
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should have raised a causation issue -- P's stuck foot was the cause, not our
train. Didn't raise it.)
NEGLIGENCE/CAUSATION
3. Gyerman v US Lines Co (CA, 1972, p325) - P injured by falling fishmeal sacks while
unloading them. Sacks had been stacked negligently, P had complained, D took no
action to repair. D claims P was contrib negl to keep working in the face of a known
danger.
a. TC - for D on basis of contrib negl. AppCt - Orders new trial.
b. AppCt considers that P may not be contrib negl b/c he may not have had the
freedom to just walk away w/o getting fired. Taking precaution = losing job -not worth it under a BPL analysis and therefore not negligent.
c. AppCT further holds that if they allowed the defense, D would have no incentive
to be safe.
d. Court's final reasoning for ordering new trial -- D failed to show that P's
negligence (in failing to follow union rules re: reporting dangers) may not have
been a cause of the accident.
NEGLIGENCE/CAUSATION
4. LeRoy Fibre v Chicago RR (US, 1914, p334) - Farmer/Co (P) stores flax 70 ft from
rail line. RR's sparks ignite flax.
a. TC - jury - D was nglgt for emitting sparks, but recovery barred b/c P contrib
nglg for storing flax so close to tracks. US SUP CT: Reverse, judgment for P.
b. P has no duty to protect self from D's negligence when P on own land. Contrib
nglg defense fails on P's own land. On private land, P has no rqmt to take care
(even if it is more efficient than RR's care), and, as long as D was nglgt, can
recover.
c. Holmes (concurring) - Showing of CAUSATION is rqd. Still necessary to show
D's negligence was the cause. IE if D were negligent and flax burned, but flax
was so close it would have burned even if D weren't negligent, then the
negligence was not the cause, and P cannot recover. (Under an SL system a la
Rylands, farmer would store flax right up to the tracks b/c he could recover
whether D were negligent or not.)
d. So, Contrib Nglg cannot be an affirmative defense when P on own property, but
causation could.
INJURY
5. Derheim v N. Fiorito Co. (WA, 1972, p338) - Collision. D clearly nglg, but P's failure
to wear safety belt greatly increased severity of injury. Contrib nglg?
a. WA SupCt - No, seat belt defense is not an affirm defense. (Although on BPL,
he's nglg -- cost of precaution is tiny compared to harm prevented)
b. D is conceding that he was negligent and that he was the cause, but is arguing
that he did not produce the injury. Ct refuses to allow this defense b/c P's
negligence was not a factor in bringing the injury about. (Also, P's car is like his
property, and he shouldn't be required to defend self from D's nglgc on own
property.)
c. Many courts do allow this, and RS seems to like it b/c it promotes cost-effective
behavior.
6. LAST CLEAR CHANCE - an exception to contrib nglg rule -- if, after P's nglgt act, D
still has a chance to avert harm, P's nglgc is not an affirmative defense (EG - man
negligently on RR track. If D could stop, but does not, P's negligence is not
contributory b/c it preceded the nglg that directly caused the harm.
7. YOUTH - Young people need meet a lower standard of care when they are P,
reducing applicability of contrib negl defenses in their case.
B. ASSUMPTION OF RISK -- Assumption of risk arguably does not exist at all. If it does, it
21
covers a very narrow band of situations. Many courts (and RS) do not really consider it
a viable defense -- they consider it a part of contrib/compar nglg.
HANDOUT #5 - Analysis of Assumption of Risk (a look at situations often misidentified
as Ass of R):
1. D nglgt, P waived tort rights by contract. No recovery, no ass of R. (eg - P signs
waiver when buying annual ski pass; injured when lift breaks) (Smith v Baker &
Sons p357 - P injured by stone at work, dissent urges no recovery b/c of K) -- NOTE:
waiver must be explicit; small print on tkt not enough
2. D not nglgt, P not nglgt - no recovery, no negligence, no ass or r (eg - careful p
injured on well maintained trail) (Murphy v Steeplechase (NY, 1929, p359) - Flopper
- Judgment for P reversed b/c there was no negligence on any side)
3. D is negligent, P not nglgt even though encountering a known danger. Lesser of two
evils. (Marshall v Ranne p359 - Mad boar bites P, but P faced w/ choice of evils stay prisoner in own home, or risk venturing past boar. No negligence on P's part.
Recovery allowed. No affirmative defense)
4. D nglgt, P contrib nglgt. No recovery based on P's conduct. Defense of contrib nglg
allowed. (Meistrich v Casino Arena Attractions p363 - Even though D nglgt in
keeping ice in bad shape, P nglgt for skating on it.)
5. Assumption of Risk - No recovery. P has choice of two trails, one in good shape, one
negligently maintained; P, necessarily an expert or a risk lover, chooses latter b/c of
the challenge and is injured. D has negligently created a hazard; P knows of the
hazard and voluntarily chooses to accept it. Debate as to whether this situation
exists; following cases decided under this category, but maybe should be part of
other groups.
a. Lamson v American Axe & Tool - MA Sup Ct bars recovery to P, injured by axe at
work, b/c he assumed the risk. P not contrib nglgt b/c, under BPL, cost of
precaution is high (may lose job)
b. Maddox v City of New York - NY App Ct bars recovery b/c Yankees outfielder was
aware of the field condition that ended up harming his knee, but opted to go out
there anyway/
6. Knight v Jewett (CA, 1992, p387) - Touch football injury. P claims D owed her a
duty of care, especially since she had specifically asked him to take it easy.
a. H: TC - grants summ j for D on grounds of ass of r. SupCt affirms judgment on
grounds that D was not nglgt, but acting ordinarily for touch football. (like #2
above and on handout 5)
b. Generally, ass of r (#5 above) no longer exists; usually blended into contrib negl
(#4 above) or others (#2 in this case)
c. Under a contrib negl regime, #4 and #5 bar recovery. Under compar negl
regime, #4 allows partial recovery, but #5 bars recovery.
C. COMPARATIVE NEGLIGENCE
1. Li v Yellow Cab (CA, 1975, p373) - Vital case in which CA adopts comparative nglg
regime instead of contrib nglg. Cab and car crash into each other, both responsible
for some of the harm.
a. CA SupCt holds that each party responsible for its proportional harm.
2. [EG, A harmed $5000, B harmed $10,000; A's degree of relative nglg is 60%; B's is
40%. Under contrib nglg, no recovery. Under compar - B gets his harm ($10k) x A's
fault (60%) = $6k and A gets his harm ($5k) x B's fault (40%) = $2k. In CA, both
parties' insurance policies will pay the other, no wiping out of relative debts -makes for more payments and higher rates.]
a. Most jurisds base percentages on degree of relative nglg; some, like PA, base it
on "causal responsibility" not degree of nglg.
22
b. Under either system, jury determines the actual %-age; makes for
inconsistencies. If jury cannot unanimously agree on %-ages of fault, sometimes
they surreptitiously just average on there own and come up with "quotient
verdict"; judges often try to prevent via special verdict
3. CA system - pure comparative nglg (the most common type); Impure (in some jurisd)
- 50% or more negligence on part of P bars recovery. If A were plaintiff, no recovery
under impure system b/c A is 60% at fault. Determination made by Ct in CA
(characteristically activist move), by legis in other places.
4. Ass or R and Last Clear Chance have generally been folded into comparative nglg
system
5. Intentional Torts and SL cases - P can still recover 100% despite his nglg; P's nglg
not considered. Same w/ willful misconduct (except in CA, where it is part of
compar nglg)
VI. JOINT TORTFEASORS - Five Types of Joint Tortfeasor situations (Handout #7):
A. JOINT CAUSATION - two or more Ds are 'but for' causes, harm resulted only b/c BOTH
acted nglgtly; neither D's solo action would have been enough to cause. (Most common
variety of joint tortfeasors.)
1. Smith v JC Penney (OR, 1974, p404) - P's coat burns b/c (1) sprayed by gasoline by
defendant service station, (2) made of flammable material made by defendant
Bunker-Ramo and sold by defendant JC Penney.
a. H: Each D is negligent, and each is jointly and severally liable, meaning P can
enforce judgment against any one in full, or both partially, not to exceed 100% of
judgment.
i. P will generally go after deeper pocket. Deeper pocket, D1, will then turn
around and try to recover fair share from D2 (either in sep. suit, or in stage 2
of original suit.)
ii. No rqmt for P to recover based on relative fault b/c P should not be forced to
suffer the loss if one of the Ds either has no assets or is out of jurisd
iii. If apportionment of loss is easy to determine (D1 released 30 cows which
trampled P's field, and D2 released 10), then P may be required to collect
individually from the two.
B. CONCURRENT CAUSATION - The act of either D would have caused the whole harm by
itself. No liability if one of the harms caused naturally. If both were results of negligent
acts, then there is joint and several liability. (rare)
1. Kingston v Chicago & NW Ry - (Wi, 1927, p400) -- Two separate fires merge and
burn P's property.
a: H: for P, b/c it is determined that second fire started nglgtly as well. Even
though no one knows who started it, since it is not natural there is joint and
several liability. If it were determined that fire #2 had been started by lightning,
D would not be liable for his nglgt act b/c there would be no showing that the
nglgt act caused the harm.
C. CONCERT OF ACTION - If two or more Ds act together, and only one causes harm, all
are jointly and severally liable. (infrequent)
1. Hall v du Pont (blasting cap case) -- all named blasting cap mfrs held liable for
injury unless they can prove that they were not involved in the particular incident -"enterprise liability"
D. ALTERNATIVE CAUSATION - Only one of 2 or more negligent Ds caused the harm, but
unknown which one. Joint and several liability, at least when there are only 2 Ds. This
is sort of like RIL - tough for P to show evidence, burden is on D. (This runs into
problems if there are many possible Ds; what if there are 50 -- should P be able to
collect full recovery from any of the 50 even though there is only a 1/50 chance that
23
that D caused the harm?) (rare)
1. This is the INDETERMINATE DEFENDANT problem (How to assess liability when
you don't know who caused and there are many possibilities?). Compare to
indeterminate plaintiff problem.
2. Summers v Tice (CA, 1948, p407) - Two Ds, hunting with P, both negligently shoot P
while aiming at target. Only one hits, but imposs to know which. Ct: joint and
several liability (prob applicable b/c there are only 2 Ds.
E. PROPORTIONATE LIABILITY - Really only applies to DES litigation (QUESTION)
1. Sindell (class action) (P) v Abbott Laboratories (and others) (P) (CA, 1980, p411) - P
injured when her mother took DES during pregnancy. As part of class suit, sues
several DES mfrs b/c she doesn't know precisely which produced the DES her
mother took. (Same idea as Summers v Tice, but there are so many DES mfrs (200),
that it is unfair to make each on joint and severally liable.)
a. H: TC - grants Ds' demurrer (based on imposs of showing likely causation on
part of any individual D); AppCT - Reverse;
b. Ct develops a revised Summers rule under which Ds are liable for their
proportionate CA market share, not pro rata share. (To be liable, a given D must
have "a substantial percentage"; P has burden of proving Ds' market shares in
lieu of showing causation.)
c. Orphan Share (liability of insolvent or absent Ds) - borne by P. [(QUESTION)
While Sindell allows for joint liability (ie P can enforce judgement against any of
the Ds), Brown v Superior Court (CA, 1988, 421) - amends noting that P can
only recover relative share, and is stuck w/ orphan shares.]
d. Dissent notes that it is still 90% likely that any given D shouldn't have to pay
anything. However, costs will even out over the course of several suits b/c
across society any D with a 10% market share did cause 10% of total harm.
e. Problems with proportionate liability:
i. National or state market share? Sindell is CA only; in Hymowitz v Eli Lilly
(NY, 1989, 422), ct holds that nat'l market share is more appropriate. (RS:
this is only true if every jurisd holds the same way)
ii. Hard to quantify market share. McCormack v Abbott Laboratories (Fed (MA),
1985, 423) - Garrity holds that each D has burden of proving market share.
If some Ds are unable, then remaining liability is split among them. (IE, 4
Ds; one shows 10% share; the other 3, if they cannot prove share, must split
the remaining 90% - 30% each).
iii. Some other (non-DES) dangerous products are not used in a dangerous way.
Should their sales be included in firms' market share even though they
definitely did not cause harm? No, Sindell market share approach generally
not applicable outside of DES cases (Starling v Seaboard Cost Line - an
asbestos case - FedGA, 1982, 423.)
f. RS: Sindell is a good, innovative rough justice rule, but almost impossible to use
in practice b/c it requires clean stats and uniform application across
jurisdictions.
g. Indeterm D Prob - P generally recovers full loss, while Ds are liable w/o
definitive liability; (Indeterm. P Prob - D pays for full cost, and Ps recover
fractions thereof, over-rewarding some and under-rewarding true victims.)
F. American Motorcycle Association v Superior Court - (CA, 1978, p424) -- P hurt in moto
race, claims D negligently oversaw race. D wants to file cross claim against parents
saying they negligently handled their son. An effort to reduce liability.
1. H: TC denies motion to bring cross-claim; SupCt - orders TC to vacate the denial.
Rule: there is joint and several liability for the Ds' proportionate fault; Ds can go
24
after each other for proportionate fault (not, as before, for pro rata share).
2. If Ds are both nglg and P is not, is there a right of contribution among the Ds
(assuming P exercises J and S liability against D1)? Old Rule - no, the loss stays
where it lies. Two avenues for relief now:
a. Indemnity - complete, 100% shifting of loss from one D to another. EG even
though employer is SL for employee's negligence (resp sup), employer can
recover all the damages from the employee after the original suit.
b. Contribution - partial shifting of liability is allowed based on Ds' comparative
fault or negligence, not pro rata share (as CA statute mandated). (EG if D1 is
70% liable, and D2 30%, and P recovers all from D1, D1 can go after D2 for his
30% share. If D2 is insolvent or out of jurisd, then D1 suffers the loss.) P does
not have the burden of showing comparative liabilities (he recovers under j and s
rules -- its up to the Ds to duke it out. American Motorcycle court, active as
always in CA, claims that they are not overstepping legislature in this decision
b/c, they hold, statute does not preclude creating "partial equitable
indemnity".
3. Why joint liability at all; why not just limit recovery from a given D to harm caused?
B/c that may force P to bear loss even though totally innocent.
4. What if P is negligent too? Ds are j and s liable for their proportional fault. Some
exceptions:
a. KS statute (p438) allows for several liability only if P is nglgt too. This means
that P can only recover up to a given D's proportionate fault from that D; P bears
all orphan share. (Unusual)
b. CA (p440) - Economic loss (medical, wages) is j and s. Pain and suffering is
several only.
c. EG - Pn 30% fault; Dn1 60%; Dn2 10%; damages - $100k. If Dn1 is out of
jurisd, can Pn recover $70k from Dn2 even though Pn is 30% responsible and
Dn2 is only 10%?
i. In American Motorcycle, P can recover full $70k from Dn2 (P's fault is
compared to Ds' aggregate fault - Ds are jointly and severally liable for their
70% of harm)
ii. Evangelatos v Superior Ct (Ca, 1988, p438) - Overrules Motorcycle on this
point. Loss caused by Dn1's absence born proportionally by Pn and Dn2.
Liability ratio Pn:Dn2 is 3:1, so Dn1's share ($60k) is split that way $45k:$15k - and added to Pn's and Dn2's preexisting shares. (Pn - $30k +
$45k = $75k; Dn2 - $10k + $15k = $25k)
5. Effects of Settlement (EG - P, non-nglg, settles D1 pre-trial for $60k; D1 bears 70%
respons and D2 30% for $100k in harm) (of course, at settlement stage, parties can
only guess what percentages of liability court will find).
a. No Contribution. P can go after D2 for the remaining $40k, and D2 cannot go
after D1 post trial. Settlement is final. This encourages settlement, especially
for the more-negligent D, but it screws the remaining D2. (If D1 ends up having
paid too much in settlement, it is still final. He cannot go after D2)
b. Contribution. Despite early settlement, D2 can go D1 for extra money D2 paid.
(And, if turns out D1 overpaid in settling, he can go after D2.) This discourages
settlement b/c there is no real benefit of getting out early.
c. Good Faith Settlement Precludes Contribution. If settlement of $60k is
considered to be in good faith, D2 cannot go after D1 for amount owed.
(However, D1 CAN go after D2 if D1 overpaid.) This is the Motorcycle rule and is
the most commonly used. Encourages settlement b/c a good faith settler is
protected from subsequent actions.
d. Carve Out Rule. (As proposed by Clark in dissent in Motorcycle.) D2's liability
25
is limited to the 30% (ie $30k) that is determined at trial. This protects D2 from
harm caused by settlement to which he is not a party, but results in punishing P
for low settlements, and discourages P from settling at all. Rejected in Amoco
Cadiz.
VII.
A.
DAMAGES - The immorality of D's actions not considered. Rather, damages serve to
compensate P for the injury suffered. Combination of compensatory and punitive. P=s
burden to justify damages.
COMPENSATORY. Combo of economic (medical costs, wages) and pain & suffering.
Theoretically, compensatory damages are not influenced by the type of tort (negligent,
intentional, etc).
1. Comp damages are a lump sum award, must account for compensation for future
harms of the current injury
a. Collateral Source Rule - P is entitled to full damages from D even if P has
recovered some or all of that amount from P=s first party loss insurance b/c of the
same injury.
i. Welf Cons - bad rule; stupid to engage legal system to allow P to recover
more than 100%.
ii. Deterrence/Corrective Justice - Good rule. P=s foresight should not benefit D
and harm P.
2. ECONOMIC - Medical care, custodial care, lost earnings
a. Rather arbitrary b/c of several unknowns: P=s longevity, appropriate discount
rate, future inflation rates, tax complications. Still, economic damages are
relatively uncontroversial.
3. PAIN & SUFFERING - Damages for physical pain, emotional suffering, loss of
enjoyment of life. These are extremely hard to quantify, and, therefore, P&S awards
are quite controversial. (RS notes that P will have to pay 1/3 of damages to lawyer
anyway, so maybe P&S just makes up for that.) P&S now covers loss for wrongful
death and loss of consortium, which were not grounds for recovery for many years.
Consortium awards developed very patriarchically - originally, only husband could
recover for loss of wife=s/children=s services; now it goes both ways and allows for
recovery for loss of services, companionship, sexual relations. (some fear slippery
slope - if we allow children to recover for parent=s death, soon cousins and second
cousins will recover, too.)
a. Welfare consequentialist - since no one would ever care to insure for such
damages, there is no utility in awarding damages for them. Money cannot replace
such losses; P&S damages are inappropriate. Econ damages alone are enough.
b. Deterrence/Incentive Theory - Granting these awards serves to more greatly deter
such behavior in the first place. Econ damages alone is not enough to compensate.
(Since incentive theory is part of welf cons there is something of an internal
contradiction here.)
c. Corrective justice - P must be made totally whole. As under deterrence theory,
P&S damages are worth it -- they cover the cost of the additional risk placed on P.
(EG - if life worth $5mill, and D=s acts increase P=s risk of death from 1/10,000
to 2/10,000, then P is entitled to damages of (2-1)/10,000 * $5m = $500.) Econ
damages alone are not enough.
4. Generally, the jury is left with the job of determining whether or not P&S is okay
(which means that there may be radically different damages for similar torts). HOW
TO CONTROL DAMAGES? MAKE THEM MORE CONSISTENT?
a. Judicial Control - judge can mandate new trial if he believes damages are too high
or low, OR, if parties agree, judge can exercise remittitur or additur to lower or
26
raise the award w/o a new trial. (Parties have right to refuse judge=s offer and go
to a new trial.)
b. Comparable Case Information - Inform juries of awards on other similar cases.
(Rarely used.)
c. Scheduled Damages - Damages awarded based on a schedule or code (in use in
UK and Can)
d. Statutory Caps - Upper limits on liability. (Most frequently used in products
liability. RS dislikes this plan, and notes that its results are often stricken down
b/c they are unfairly limited.) Sometimes, this goal is met by allowing full
economic damages, but capping P&S damages.
5. LAWYERS FEES
a. Contingent Fee Arrangement - Current system - lawyers generally collect about
1/3 of damages upon award. Keeps interests of attorney and client in line.
i. Problem: may induce lawyer to settle too early to get his 1/3 fast.
ii. Without fee-shifting, in US the lightly injured tend to recover too much
(cheaper and easier for D to pay more to less deserving claims than to ratchet
up courts) and severely injured recover too little (D=s use courts to their
fullest to stop any damages, allowing suits to go on and on; and, P=s have to
give up a huge chunk of damages to the lawyers.)
b. Fee Shifting -- Non-existent in US law (but RS loves it) -- losing party must pay
legal fees of victor, as well as court costs. This would prevent P from bringing
any frivolous suits (high risk of having to cover D=s costs, too) and prevents D
from trying to win by attrition (exhaust P=s resources).
i. Fee shifting may curtail innovative suits, but many believe that to be a good
thing -- less litigation altogether.
ii. Unlikely to come to US, b/c trial lawyers lobby wants to keep level of
litigation high.
B. PUNITIVE DAMAGES - Recovery over and above compensatory. Allows for extra
recovery for particularly reprehensible torts (quasi-criminal). A separate criminal
conviction does not preclude punitive damage award. (Judge can reverse by exercising
remittitur). (Punitive damages are rarely awarded, but their regular pleadings do often
influence settlements.)
1. Why aren=t comp damages alone good enough to deter tortious conduct?
a. Because D may have caused more harm than comp damages reflect
b. Concealment - D may be hiding risk not covered by the comp damages=
deterrence function
c. Thrill-Seeker -- cost of precaution (driving slow) may be too great for comp dam
alone to deter.
2. US Sup Ct - pun damages do not violate 8th amend (cruel & unusual), but may
violate due process in some cases.
3. Punitives are awarded to P b/c that gives P the incentive to go for them. If they only
went to the gov=t, it is likely they wouldn=t be vigorously pursued.
VIII. MODERN STRICT LIABILITY
A. Spano(P) v Perini Corp.(D) (NY, 1969, p659) - D, construction co working for NYC, is
blasting tunnel. P=s garage and P2's (Davis=) car are damaged by the impact of the
blasts. No evidence of any negligence; P sues on grounds of absolute liability.
1. H: TC - no jury - for P - $4,400 for gar; $329 for car.
2. AppTerm - reversed. SL can only apply for direct damages (ie blasted rocks), the
force of the blasts is not actionable under SL (based on Booth v Rome rule, which we
didn=t read) and there is no action under nglg b/c D was not nglg.
3. CtofApp - Booth rule is wrong. Even non-physical invasions are governed by SL.
27
B.
C.
D.
E.
F.
Remands. (RS: under Blackburn, no SL b/c D working on public way. by now, the
location of the act is not nearly as important as its nature.)
Restatement (Second) of Torts - SL for abnormal dangers (similar reasoning to
Blackburn). While nglg is far more commonly employed, SL is well established and
expanding in the area of abnormally dangerous activities.
S519 - Abnormally dangerous activities covered by SL.
S520 tries to define abnormally dangerous activities (sort of a guide, not necessary that
every element be met). Judge, not jury, makes this determination (much skepticism about
a court=s ability to get it right):
1. S520 (a)Large risk; (b)great harm; (c)inability to eliminate it with precaution. (ac)There is a large residual risk even when precautions are taken. In such cases, it is
right for the residual harm be borne by D so that D makes an accurate accounting of
all costs when deciding to do the job. (IE, the direct cost of blasting may be lower
than digging, but when residual harms are added in, blasting may be more expensive.)
Assigning residual harms to D is more efficient (welf cons) and in line with
corrective justice (D should pay P for what he does to P).
2. S520(d) -- Activity not a matter of common usage. If most people don=t engage in
this activity, then the risk is not reciprocated. (IE, driving a car would not qualify b/c
it is common)
3. S520(e) - Inappropriateness of place. More acceptable to do abnormally dangerous
things when there are fewer people around/fewer things sensitive to the particular
activity.
4. S520(f) - Value to community vis a vis danger faced. If an activity is very valuable to
the community, SL may be inappropriate b/c overall value may be greater than the
payment D is getting for the act (ie - a business may be the economic heart of a
cmmty, and its total social benefit outweighs residual harms).
Lack of confidence in this Aguide@ has led to the creation of a set of activities to which
SL applies regardless of S520 -- blasting, fumigation, spraying of hazardous chemicals,
releases of toxic chemicals.
Indiana Harbor Belt RR Co (P) v American Cyanamid (D) (Fed (Posner), 1990, p674) - D
sending acrylonitrile from Midwest to east coast by rail. Missouri Pacific is transport co,
tanker car leased by D from North American Car Co, car switched from track to track at
P=s switching yard near Chicago. Leak during switch. IL Dept of Env charges P
$981,022.75 under Superfund SL. P sues D to recover damages and, since no evid of
nglg, P proceeds on grounds of abnormal danger (SL).
1. H: TC - Summ J for P. Circuit (Posner) - SL is the wrong rule; this is not abnormally
dangerous. Reversed and remanded. Posner determines that S520 def of abnormal
danger does not cover this case, and that SL should not apply:
a. Proper precaution could have prevented. Someone (NACC, MP, D or P) could
have exercised due care in caring for car and avoided this harm. No big residual
risk of harm as required by S520 (a-c)
b. This place was not inappropriate (S520(e)) - There was no practical alternative b/c
all switching yards are in cities. The only way to avoid cities is too excessively
lengthen trip and thereby increase the risk of an accident along the way.
c. S520(f) - This chemical is greatly needed and valued. Worth the risk/harm to
society.
d. (Generally, it is tough to apply the R2 S520 guide, so courts more typically look to
the categories to determine if SL should be used.)
e. (In hindsight, clearly it would have been better for P to plead this case on both SL
and nglg grounds in order to cover her bases.)
2. Seigler v Kuhlman (WA, 1975, p680) (Gasoline tanker is governed by SL - [court
28
cites Rylands]) and Indiana Harbor Belt are sort of at the edges of SL applicability.
G. P=s PF case: (1) Show abnormally dangerous activity (thereby covered by SL), (2)
Injury, (3) Causation, [not as hard to show as in nglg cases, but still tough, esp in
pollution cases affecting health; since its tough to show >but for= causation, polluters
often get off, leaving the only remedy at the hands of legislators], (4) Damages.
H. Madsen v East Jordan Irrigation Co (UT, 1942, p664) - D=s non-nglg explosions scare
P=s minks who devour their young.
1. H: For D: The explosion was not the prox cause (directness test). The minks= act of
devouring was an intervening act.
I. Yukon Equipment v Fireman=s Fund Insurance Co (Alaska, 1978, p673) C Thieves broke
into D=s warehouse and set off D=s explosives to cover their tracks. D judged to be
liable for damage caused to P by the explosion b/c it was reasonably foreseeable
(foreseeability test of prox cause) that thieves would do this.
J. AFFIRMATIVE DEFENSES UNDER STRICT LIABILITY.
1. Contributory Nglg and Comparative Nglg are NOT defenses to SL. R2 S524 makes
clear that P is not required to take any precautions to protect self from abnormal
dangers. (It is a defense if P knowingly and unreasonably subjects self to the danger.)
2. Assumption of Risk IS a defense (RS: if it exists at all) and completely bars recovery.
R2 S523.
K. Environmental Liability - Under OPA90 and CERCLA (Comprehensive Environmental
Response, Compensation and Liability Act, aka SUPERFUND) - Very strict (almost
absolute) liability that can be applied to a broad swath of Ds, even those seemingly
remote from the harm.
1. This is an example of public tort law. P is generally the gov=t. Allows gov=t to
recover harms to public resources. Private Ps can sue separately.
2. Problems: lots of liable parties (maybe too broad a swath) b/c the alternative means
of covering the cost (raising taxes) is not palatable. Further, the complexity of
involving so many Ds in such confusing cases results in long and expensive
proceedings.
IX. ALTERNATIVES TO TORT - tort system is failing, esp in re: (1) medical malpractice, (2)
products liability, (3) the environment.
A. (Sugarman, Doing Away with Personal Injury Law) Perhaps there are better ways than the
expensive and questionably effective tort system to promote care-taking: (1) selfprotection, (2) regulation, (3) free markets, (4) moral duty. Two key clusters of criticism
(deterrence/incentive and insurance):
1. Tort System fails from deterrence view point b/c
a. The four systems noted above may deter more effectively
b. While big companies are probably aware of tort consequences of their acts,
individuals and small companies probably do not even consider it. (IE - the
incentives aren=t so pronounced as to influence behavior.)
c. Incentives may not be in line with real values. (IE - a life may be worth more than
the $5mill usually assigned to it in tort.) Tort system may UNDER-DETER b/c
liability is inadequate relative to the harm.
d. In other cases, the system over-deters (huge and uncertain jury awards) which
serves to stunt commercial progress.
2. Tort system fails from the insurance point of view (the crisis in tort is more manifest
from this point of view):
a. Only those injured via others= negligent acts get recovery, even those injured by
non-nglgt acts are in need of help. Its like a lottery.
b. Too costly, in the sense that victim only gets about half of the payout. The rest
goes to the lawyer and to admin costs.
29
c. B/c of the rqmt that parties pay their own attorney=s fees, small claims overrecover and large claims under-recover.
d. P&S damages are an inappropriate allocation of capital which wastes resources.
e. System-wide inequity C Insurance costs the same to the rich and the poor, but rich
receive greater benefit b/c their economic loss for wages will be much greater than
will the poor=s.
3. It is arguable that the tort system has not run amok, but that harms/costs are finally
catching up, and that is why there have been such dramatic increases in claims,
awards and malpractice insurance costs in the medical field in the 1970s and 1980s.
In 1980s, proposals to repair included
a. Make it tougher to get a claim into court
b. Give P a higher burden of proof
c. Cap awards
B. Existing Systems
1. Tort As We Know It - serves incentive/deterrence and insurance goals
2. Workers Compensation (Third Party Liability System) - (meets both incentive
and insur. rqmts).
a. Worker does not need to show employer=s liability, show causation, or prove
there was no contrib/compar nglg. All that matters is that the injury be work
related. More claims are honored b/c rqmts are lower. Claims are processed
administratively, not through courts. Admin costs are MUCH lower than tort
(20% compared to 50% of total award)
b. Problems:
i. Recovery is limited because it is (1) lost wages are capped or based on the
average wage in the field of work, (2) no P&S available, (3) schedules for
damages based on the nature of the injury (and whether its temp or perm).
ii. Increased claims within an industry results in smaller awards C the employee
is indirectly contributing to the payment of awards.
iii. Tough to define Awork-related@ - what about frolic and detour?
iv. Employees cannot circumvent system and go to court for tort relief. Limits
recovery options.
v. Risk of fraudulent claims (in CA, 20% are fraudulent)
c. Still, both labor and mgmt prefer workers comp to standard tort system
3. Private First Party Loss Insurance - meets only the insurance objective. The
deterrence/incentive objectives aren=t met b/c the harmer is unaffected by the payout.
And, the injured party is not rewarded for P&S. (EG - employee benefit plan). Such
a system is much cheaper administratively than tort.
a. In the US, no fault auto insurance works this way, but allows for tort remedy as
well; some states allow for tort remedy
i. via Athreshold@ (ie injury must meet some legislated threshold to reach tort
system on top of insurance);
ii. others via Aadd-on@ (P can go to tort and insurance, but just cannot recover
more than 100%.)
b. In Quebec, there is pure no fault insurance w/o tort liability; all savings brought
about by increased efficiency were wiped out by increased accidents and claims
that resulted from absence of deterrence of tort system.
4. Government Insurance - Socialism - (EG - social security, medicare, medicaid,
unemployment insurance) - No P&S awarded. Admin costs are extremely low - only
2-5% of overall award.
a. New Zealand replaced tort for injuries with socialist gov=t insurance system
(illness still covered by private system to avoid huge expense). Schedule-based
30
system w/o P&S awards financed by general taxes and specific levies on
employers and motorists. System has met w/ financial problems, but no evidence
of increased accident rate as in Quebec (although several pharm cos did begin
testing in NZ b/c no risk of tort liability). Problem - what to do about gray area
between illness and injury?
5. Regulation - purely incentive based. No compensation for the injured.
6. Free Market - Again, essentially just an incentive based system geared toward
finding the lowest costs.
7. Which of the first four systems actually bear the costs of injury and illness in US ($2
trillion/year):
a. Tort - covers 8% of costs
b. 3d Party - covers 6%
c. 1st Party - 32%
d. Government - 54%
e. Since tort system alone involved in 8% of these injuries/illnesses, is it needed?
Yes, b/c (1) it has the best incentive effect of any of them, and (2) the US social
safety net does not catch everything as well as other countries= systemsimportant to have an effective alternative.
f. Only Tort and 3d Party meet both insurance and incentive goals. Otherwise, its
very difficult to measure the relative effectiveness of these systems.
C. STRATEGIES FOR REFORM
1. Apply 3d Party Loss system to fields such as med malpractice, environmental harms,
products liability. It has not been adopted for such fields anywhere yet, largely b/c its
harder to define a Acompensable event@ (IE - in workers comp, there is an injury, but
med malpractice, the patient probably arrived sick.)
2. Make 1st Party Loss Insurance Compulsory. - (Auto insurance is sort of like this, but
also allows for tort liability for damages beyond the scope of an injured parties=
insurance. Worst of both worlds. Why? More work for lawyers.)
X. MEDICAL PRACTICE - Medicine is governed by NEGLIGENCE standard. (Is tort
working, or should we switch to 3rd party, 1st party, or some other system?)
A. THE STANDARD OF CARE - Generally the standard is negligence based on CUSTOM
1. Helling v Carey (WA, 1974, p225) - P, 35 yrs old, visited doctor, D, for years re:
contact lenses. After P complained of certain symptoms, D administered glaucoma
test and discovered P had it already. P sues D for negligently failing to test earlier.
a. H: TC - jury - D; AppCt - affirm; SupCt - reverse; judgment for P; remand for
damage determ.
b. Custom was that no need to test for glaucoma in patients under 40 unless there are
clear symptoms. TC applied the usual standard for medicine (custom w/n the
field) and held the D wasn=t nglg. Custom, which isn=t conclusive outside of
medicine (ie TJ Hooper), is w/n medicine b/c:
i. Medicine pursues Ahealing@ not A$@, and therefore, the approach to that goal
is best determined by the profession, not a cost-based negligence system.
ii. Also, a totally objective standard would lead to defensive medicine C doctors
would be reluctant to innovate or to take risky cases AND they would
administer every conceivable test (expensive) to preclude liability
iii. Under current system, the huge damage to reputation that comes from not
meeting internal standard of care is incentive enough.
c. In this case, SupCt determines that Acustom@ is not the appropriate standard, and
applies BPL-like test: Essentially, if the cost of the test is lower than the risk of
harm (1/25,000 for patients under 40) * harm if it happens ($250k [arbitrarily]).
Here, if test costs less then $10, it is negligent not to perform it.
31
d. Sup Ct holds that D was negligent.
e. Subsequently, WA legislature passed statute mandating that Acustom@ be the
standard.
2. Helling is the exception. Custom is the standard in most other jurisds. P must show
nglg by proving through expert testimony that D did not meet field=s standard
practice)
3. Problem w/ custom: what about innovative treatments that may be worthy, but are not
yet standard?
4. [Long ago, Alocality rule@ - rural doctors held to lower standard than city doctors w/
more resources.
B. DISCLOSURE AND INFORMED CONSENT - Standard is negligence based on
REASONABLENESS
1. Canterbury v Spence (fed, 1972, p233) - P, 16 yrs old, had back problems, D
performed laminectomy to repair ruptured disk. Told P and mom little re: risks, and
mentioned nothing about the 1% chance of paralysis. While recuperating in bed, P
falls out while attempting to relieve self; paralysis results. P sues doctor and hospital
for nglg.
a. H: TC - directed verdict for D b/c no evidence of nglg or showing of causation;
Circuit Ct - Reverse; D failed to meet its duty to disclose risk which is nglgnc.
The negligence is actionable only P can show injury and causation
b. CT - D is Apaternalistic@ to refrain from informing b/c of concern that patient
would irrationally opt out. The patient has a right of fully formed self
determination.
c. Duty to inform judged by REASONABLENESS, not custom. Dr. must disclose if
the risk is material, ie if a reasonable patient would consider the risk material, Dr.
must inform
d. P must show injury or some other untoward result b/c this is nglg based suit. (In
Mohr v Williams, a battery case, Aharm to dignity@ is technically enough even if
operation is successful. Other than Mohr (old) these cases are tried under nglg,
not battery, probably b/c ubiquity of consent forms.)
e. P must also show causation - Would a reasonable patient have refused the
procedure had she been informed? (Objective again, b/c subjective patient is
likely embittered by the injury.) So, in the interest of protecting an individual
patient=s wishes (rather than the Dr=s), system relies on a non-individual nonsubjective standard.
f. (D should have argued that he wasn=t prox cause; ie there were intervening
causes such as nurse=s absence, faulty bed restraints, P=s own negligence)
g. Subsequent NY Public Health Law S2805-d (1994, p248) limited the Canterbury
liability for failure to inform by saying no disclosure rqd if (1) the risk is too
common to merit disclosure; (2) patient told dr he=d undergo treatment regardless
of risks, (3) consent not reasonably possible, (4) dr reasonably worried that
knowing of the risk would harm patient=s condition.
2. Why not rely on custom standard here? B/c doctor may have goals in mind (patient=s
recovery, $, research benefits) separate from the patient=s own wishes.
3. Problem w/ the reasonable standard for disclosure: Drs. will disclose every last tiny
risk in an effort to preclude any liability, possibly causing information overload.
4. Truman v Thomas (CA,1980,p245)-D nglgnt for not informing P of risk of not
undergoing test.
5. Mink v U of Chicago (fed, 1978, p243)- P, in attempt to cover damage to their
offspring, sued in battery, not negligence. Ct allowed it to go forward under battery.
C. RES IPSA LOQUITUR
32
1. Ybarra v Spangard (CA, 1944, p308) - P went in for appendectomy, came out with
damage to shoulder that eventually resulted in complete atrophy. P was under
anaesthetic and doesn=t know what happened. (Seems like P was dropped to the
floor while in hospital). P sues everyone involved on theory of RIL (2 private
doctors; and 4 hospital employees, including the owner, 2 nurses and the
anaesthesiologist.)
a. RIL=s 3 features seemingly met: (1) accident normally caused by negligence, (2)
instrumentality of the harm is under D=s exclusive control, (3) P did not
voluntarily contribute to the harm.
b. H: TC - dismissed case b/c no showing of which D was nglgt and which caused
injury a la RIL. (If Ds were united under an HMO or something, RIL would
stand. But here, 2 are independent. No way to tie them together.)
c. AppCt- Reverse. RIL does apply. P=s joint and several recovery must be allowed
or else medical code of silence will prevent any recoveries.
d. Compare to Summers v Tice: There, both Ds were definitely nglgt; here, we
don=t know which were nglgt. Ct still applies joint and several liability.
e. Nevada legislation requires expert testimony to back up showing of RIL
negligence, and limits its application to relatively narrow circumstances.
D. ALTERNATIVE APPROACHES TO MEDICAL MISHAPS 1. Big Problems:
a. Medical malpractice cases are booming. Insurance rates in 1949 were $360/yr,
now they are $60k. But, malpractice costs (5% for disclosure cases, 10% for RIL,
the majority for failure to meet custom of profession) only represent 1% of total
industry revenue.
b. Also, these cases take avg of 6 yrs; Canterbury took 17. Ps generally only keep
30% of the awards.
c. Harvard Study C 4% of all patients are injured iatragenically; one quarter of those
(1% of all) are injured due to negligence. But only 1 in 40 cases of negligence
result in recover; AND, only 1 in 6 recoveries is based on negligent harms
(probably b/c claims were small and settled pre-trial).
d. Small claims are overcompensated, large claims under-compensated (due to
contingent fee system).
2. How to improve system, reduce suits? Lower statute of limitations, limit lawyers
contingent fees, install review boards to screen claims, disallow collateral source rule,
stiffen doctor quality control, eliminate pain and suffering awards.
ALTERNATIVES to standard malpractice system
3. Enterprise Liability (Negligence) - Hospital or HMO should bear full liability, not
the physicians. Physicians will like reducing insurance costs, but will hate losing
autonomy. (US is beginning to move this way. Other industries already operate this
way, ie - airlines are responsible for pilots= negligence.) This system may not have
any effect on the overall number of claims.
4. 3rd Party Loss/Strict Liability - Harvard study indicates there is scant relationship
btwn negligence and recovery. Therefore, perhaps we should make a clean switch to
SL and allow recovery for all injuries as a standard cost of healthcare. Would operate
like workers comp - 3rd party no-fault insurance - HMO buys the insurance (or selfinsures) and passes the cost along to all patients (they are essentially buying insurance
indirectly through the HMO). Incentive to test and perform procedures? BPL costjustif.
a. Helling concurrence - Utter argues that SL would do a better job of providing
better, cheaper care.
i. No costly need to determine if acts were negligent.
33
ii. The enterprise can bear the burden better, and will optimize use of
precautions.
iii. Eliminates the threat of defensive medicine.
b. Does SL in medicine compare to SL in blasting (abnormally dangerous)?
i. Different:
S Activity Level of blasting can be reduced; med. cannot C medicine is
needed by society.
S Benefit to Community C Patient has consented and the action is for the
mutual, agreed benefit of doctor and patient; in blasting, no mutual benefit
and P has not consented. Argues against distributional equity b/c P is
gaining from treatment in medicine.
S Causation - In blasting, its clear. In medicine, patient came in sick (a
likely cause). (Similarly, workers comp analysis is easy - harm happened
in the workplace. Not so clear in medicine.)
 How to show causation in malpractice SL system? In NZ, they decide
by applying a list of Adesignated compensable events@ to the injury.
The list is a catalog of rare outcomes of procedures. (This type of
system could induce an HMO to avoid offering risky procedures unless
statutorily rqd.)
ii. Same:
S Both are type I unilateral harm/unilateral care situations.
S Both have large resid risks not compensated under nglgnc system. SL may
spread loss.
S Distributional equity - the actors who cause the harm should bear the loss.
c. No Fault SL system would result in many more claims, and therefore more
expense. Harvard study proposes some ways to cut costs:
i. Costs lower b/c no need to determine if there was negligence
ii. Administrative (non-court) mechanism much more efficient
iii. Use HIGH damage deductibles (ie no recovery for the first 2 months of
treatment)
iv. Eliminate the collateral source rule.
v. No pain & suffering damages.
d. Harvard estimates this system would cost $1.2 billion per year, which isn=t much
more than the $1 billion cost of the tort based malpractice system that presently
exists.
5. Socialism - Provides no real incentives to any parties, but would probably be much
cheaper administratively.
6. Contract a. Obstetrics & Gynecologists(D-appellant) v Pepper(P-appellee) (Nev., 1985, p367)
- P, who had signed a form agreeing to settle any claims through arbitration, took
pill and suffered cerebral damage and paralysis. P, probably hoping for a
sympathetic and generous jury, tries to bring a tort action despite arbitration
agreement. I: was the form binding?
i. H: The form is NOT binding b/c P did not sign it with full awareness AND b/c
she was not in a position to bargain over its contents (ie - clinic had too much
power - take it or leave it).
XI. PRODUCTS LIABILITY
A. THE FALL OF PRIVITY AND THE RISE OF PRODUCTS LIABILITY
1. Winterbottom v Wright (UK, 1842, p730) - Mfr (#1) sold coaches to D(#2), coach
maintainer and supplier. D supplied and serviced coaches under contract with post
34
master general (#3). P (#5), worked under contract for driver company (#4), which
had contract with post master general(#3). P hurt when carriage broke, sued D for
breach of K.
a. H: TC grants D=s demurrer b/c no privity of K. D owed no duty to parties other
than #3 b/c i. Deciding otherwise would harm industry and economy
ii. Under old privity rules, duty extends only one link in the chain
iii. ASlippery slope@ -- there will be countless ancillary suits if this one allowed.
b. Does P have alternatives? Not really. Employer (#4) is not nglgt, P.M.G. (#3) is
gov=tal and therefore immune, mfr(#1) is even more distant than D.
2. Huset v J.I. Case Threshing Machine Co. (8th Circ, 1903, p732) - Notes situations
that are exceptions from privity rule. L
a. Liability is always limited by privity unless:
i. The product is food or drug, and poses immediate danger (ie mislabeled
poison), or
ii. P is invited to use the product on D=s premises (so that D is still supervising
use), or
iii. D knows and is silent about a dangerous latent defect.
b. CT - Privity is generally binding b/c it is usually the case that only the purchaser is
the foreseeable user (RS - weak argument) and its unfair to hold D liable to 3rd
party when idiots use products improperly or modify the product. Otherwise,
liability would be too unpredictable and broad.
3. MacPherson v Buick (NY (Cardozo), 1916, p733) - OVERRULES Winterbottom
rule. Chain of Acontract@: wood seller  wheel mfr  Buick(D)  Retail Dealer 
Plaintiff. Wheel breaks, P injured, P sues Buick for negligence.
a. D claims no duty of care b/c no privity of K. No liability under any of the Huset
exceptions either.
b. H: TC; AppDiv; CtofApp - for P. Card - Privity does not limit duty of care if (1)
mfr knows that the product would be dangerous if negligently produced, (2) mfr
knows that someone other than the purchaser (retail dealer here) will use the
product, and (3) mfr does not inspect
i. [P goes after Buick (and not wheel mfr)b/c Buick is final assembler and
therefore responsible for final inspection. Buick could turn around and sue
wheel mfr for nglg for recovery]
c. Through his standard magic, Card shows how Huset exceptions do apply, and
actually how they swallow up the rule of privity limitation altogether:
i. Immediate danger exception should be extended beyond food and drugs.
ii. D did indirectly invite P to use (via advertizing and via dealer C D knew and
supported dealer=s work)
iii. D knows that product is dangerous if it is negligently made.
d. Card=s reasoning: products are now too complex for people to evaluate. No more
caveat emptor.
e. The MacPherson reasoning swept across jurisdictions rapidly.
4. Escola v Coca-Cola (CA, 1944, p741) C P, waitress, injured when Coke bottle
explodes (CONSTR. DEFECT). Sues D for negligent packaging. (Decision
noteworthy for Traynor=s concurrence, which pushes for SL)
a. H: TC - P; SupCt - Affirm; Finds negligence from circumstantial evidence based
on RIL. (RS: its very questionable whether bottler was nglgnt, and whether defect
occurred after bottle left Coke.)
b. [P is unable to sue under contract privity b/c employer, not P, bought the Coke.
P=s not going for workers comp against employer b/c there are bigger payouts
(P&S, non-capped wages) under tort. She could go after employer under workers
35
comp and against Coke in tort.]
c. TRAYNOR=S DISSENT: SL, not negligence, should apply as long as product is
being used normally and properly.
i. Since products are too complex for consumers, consumers do not appreciate
products= real costs/risks (Handout #8) and will not push for cost-justified
precautions.
ii. SL boosts sticker price (reflects liability & admin costs borne by mfr), but also
creates situation in which total cost is overt: even ignorant consumers will
know the real cost of a product.
iii. [Sales will drop more than risk justifies b/c price rise reflects more than just
risk, but SL admin costs too.]
d. Traynor=s rationale for applying SL is essentially WELFARE ECONOMIC -proposes a change in the law based on incentive and insurance in the face of
market failures.
i. Incentive - Greater incentive for mfr to reduce risks. The internalized
residual harm may induce mfr to innovate new safety features. SL is a
continuous incentive to reduce/eliminate residual harms. (Both SL and nglg
induce precaution, but nglg does not induce innovation b/c mfr does not bear
residual harm.)
ii. Insurance - Mfr in best position b/c it can spread the loss by charging all
consumers a little more and using extra income to buy insurance or selfinsure. Also, SL allows consumers to Ainsure per use@ (ie pay the extra
premium only when they buy a product).
iii. Burden of proof - (not a key rationale) Its almost imposs for P to show nglg,
so SL is better, esp since RIL, which majority used, is much like SL anyway
iv. Probs with SL: (1) Tough to price accurately, (2) Very expensive (admin costs
boost every $1 of residual harm into $3 of cost; it would be cheaper for people
to buy 1st party loss insurance, but they never would b/c people don=t insure
for such damages; further, a mandatory 1st party loss system is inefficient, too,
b/c under it the careful subsidize the careless and the poor (who pay a greater
proportion of income) subsidize (relatively) the rich)
e. Is SL for mfr defect like abnormal danger is SL? Not really:
i. No significant residual risk in mfr defect
ii. There is a bilateral agmt for mutual benefit (in blasting, P is passive; here, P
actively uses prod)
iii. Here, the activity is of common usage
5. Greenman v Yuba Power Products - (CA, 1962, p752) - 8 years after Escola,
Greenman formally adopts the SL standard as proposed in Traynor=s Escola
concurrence. Subsequently adopted by Restatement and other jurisds.
a. But, Greenman was a design defect C arguable that it should still be negligence.
6. CONTRACT - Some Ps have recovered by charging that D breached implied
guarantee of suitability for purpose sold (most Ps use tort, not K, recovery)
a. McCabe v Ligget - (MA, 1953, 747) - Coffee urn explodes. AppCt for P on K
grounds b/c there is an implied warranty of merchantability meaning the Agoods
are reasonably suitable for the ordinary purpose for which they are sold.@
(DESIGN DEFECT)
b. Henningsen v Bloomfield Motors (NJ, 1960, p751) C Jury (and AppCt) for P on
contract theory. AppCt - express warranty is much too scant, must therefore
imply a warranty of merchantability. B/c of D=s broad advertizing and placing of
product in stream of commerce, D is not protected by contract privity. (CONSTR
DEFECT)
36
7. The Break-Down of Privity Limitations:
a. Chysky v Drake Brothers Co (NY, 1923, p749) - P, a waitress, bit into a nail
baked into a cake bought by her employer from D. AppCt upheld decision for D
on grounds that there was no privity C D not liable to third parties.
b. Greenberg v Lorenz (NY, 1961, p750) - CtofApp rejects Chysky and holds for P,
injured by metal slivers in can of salmon, despite lack of privity.
c. Henningsen - privity continues to break down
d. These type of actions in contract (warranty based) are less prevalent now b/c they
generally limit recovery to damages from the retailer. Tort recover under SL
allows for recover from mfr as well.
8. HANDOUT# 8 - If consumers are unaware of risk, the market alone will not prompt
them to make a cost-justified purchase of a safer more expensive product (no liability
doesn=t protect). Under a negligence system, all products will be sold w/ safety
precautions (mfr is avoiding liability), but only informed consumers will be aware of
the on-noted residual harm that comes with the product; ignorant consumers will not
appreciate a product=s real cost. Under SL, the residual harms are borne by the mfr,
who passes them along (together with the huge admin costs) to all consumers. Now,
the total, real costs of products are clear to everyone, but they are higher than the risk
justifies b/c of the add=l admin costs included.
B. THE RESTATEMENT FORMULATION - STRICT LIABILITY
R2 S402(a) (1966) (p755) - very influential
(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user or consumer or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it was sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his
product, and
(b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.
1. Hypothetical situation: (1)component seller  (2) mfr  (3) wholesaler  (4) retailer
(5) purchaser  (6) consumer/user  (7) bystander.
a. Assume defect. Who can recover for injuries?
i. #5 and #6 as we saw above in Escola/Greenman.
ii. #7? Yes, b/c privity is truly gone. (Elmore v American Motors (CA, 1969,
p760)
b. Which Ds are liable?
i. Under Escola, Greenman, Elmore #5, #6 and #7 can sue Mfr (#2) for physical
injuries (to person or property), but not for any economic loss brought on by
the lack of use of the product). Mfr is liable in all jurisdictions.
ii. Is Component Seller (#1) liable?
- Goldberg v Kollsman (p754) - No. Altimeter mfr not liable in plane crash.
Administratively more efficient to limit the number of potential Ds.
S Other courts say #1 is liable (Gives P another route to recovery, especially
in cases where mfr is not available, and would limit P=s burden of
pinpointing source of defect)
S Courts are divided, but majority of them probably consider #1 to be
amenable to suit.
iii. Retailer (#4) or Wholesaler (#3)?
37
S Yes. Vandermark (p776). More targets for P in case other Ds are out of
jurisd. If #4 or #3 is found liable, they can cut their losses by turning
around and suing mfr.
S No. #3 and #4 don=t have any insurance (loss spreading) effect, especially
b/c mfr is probably insured anyway. Further, their liability won=t affect
incentives to innovate -- they are in no position to do so. AND even
though they can sue mfr to recover damages paid, why not avoid those
admin costs and make P go after mfr in first place? (RS agrees that there
is no reason to hold retailer liable.)
S Jurisdictions are divided. Some consider both amenable, some just one or
the other.
2. Exceptions to Restatement SL
a. Service providers, unlike sellers of products, are not judged under SL.
Murphy v E.R. Squibb & Sons, Inc. (P771) - P sues pharmacist for harms caused
by the DES pharmacist prescribed. CT - No strict liability on the (iffy) grounds
that a pharmacist sells a service, not a product.
b. Casual Seller - someone who sells his old picnic table or a single apple pie is not
governed by SL. SL only applies to those in the business of selling
c. Used goods - sellers of used goods are not rqd to meet SL standard even if they
are in the business of selling (ie a used car salesman) (Tillman, p778)
i. Exception - Crandell (p779) - a person in the business of selling rebuilds or
reconditions a product, he is strictly liable.
C. MANUFACTURING (CONSTRUCTION) DEFECTS - Governed by STRICT
LIABILITY.
P must show breach of duty, injury, causation (ie, that the defect caused), damages
1. Escola (officially decided on negligence RIL grounds, but Traynor=s dissent famously
introduces SL)
2. Pouncey v Ford (5th Circ, 1972, p781) - While P was pouring in antifreeze and
manually accelerating engine, fan blade broke off and hit him in the face. P sues
a. Dst Ct - jury - P for $15k; 5th Cct - affirm
b. P and D introduce tons of expert testimony to resolve the pivotal CAUSATION
question. P must show that mfr made the defect not some subsequent source after
it left the factory. D trying to show opposite. P has the burden of proof (which he
meets in this case).
c. (R402a comment supports placing this burden on P)
d. (This happened in Alabama, where state law actually calls for nglg/RIL, which is
essentially SL)
3. Planters Lifesaver (p784) - P cuts hand when peanut jar breaks while he opens it.
a. Posner allows P to recover even though P is unable to prove CAUSATION
(source of defect). Posner does so by applying RIL logic to the question of origin
of the defect - circumstantial evidence is enough to show that D was the cause.
D. DESIGN DEFECTS - Generally, Negligence. The standard of liability has created more
controversy for design than construction defects. Most courts interpret R2 402a to
require negligence for design cases. (the pending Restatement of Products Liability
expressly requires it.) The defect was either known to the mfr or should have been
known.
1. Volkswagen v Young (MD, 1974, p792) - Decedent killed when, as a result of a
wreck, his seat broke off its mounts and sent him through the windshield (aka
Asecond collision@). (P is going after VW and not the other driver b/c VW has big
$.)
a. Early on, D asks for certification of: ADoes VW=s duty to build for suitability of
38
intended use extend to building for collisions?@
b. TC - Yes. Circuit Ct - Yes - the duty extends to making cars safe in collisions.
c. How to apply the NEGLIGENCE STANDARD? Reasonableness. The car
needn=t withstand high-speed collisions. Just cost-justified precautions. P must
show D failed to take such care.
i. This standard does not apply if the deficiency/absence of cost-justified
precaution is desirable and obvious, such as a convertible.
(Delveaux v Ford p 798). (It is arguable that putting a roof on is
not cost-justified b/c the cost of having to suffer under a rood
outweighs any harm avoided.)
d. Essentially, degree of care needed must be gauged on a case-by-case basis.
2. Dawson v Chrysler (p799) - CT: Case-by-case analysis may be harmful and unfair
b/c it may lead to inconsistent verdicts in various jurisdictions, requiring mfr to meet
contradictory standards in different areas -- impossible under mass production.
3. How to avoid inconsistent verdicts?
a. GREATER JUDICIAL CONTROL - Piper (p809) - judge does not allow P=s
theory of negligence to reach the jury b/c it is not feasible.
b. REGULATORY COMPLIANCE - Piper - Judge Lindey- meeting FAA rqmts is
not dispositive of negligence, but it is the next best thing. Only if FAA created an
unreasonable standard may compliance not be good enough to disprove
negligence.
i. (RS: This is right, especially since the FAA is far more expert than a jury ever
could be; of course, lobbying, bureaucracy, lack of current expertise,
regulatory delay, and unforeseeability of defects may make regulations
relatively unreasonable.)
ii. General Rule: Unless the statute specifically precludes separate tort action, it
is allowed. Regulatory compliance is evidence of no negligence, but is not
conclusive unless the statute so states.
c. STRICT LIABILITY FOR DESIGN CASES - Possible, but its fraught with
problems. Notably, how can one differentiate btwn a defect and P=s misuse under
SL? IE, if P cuts his hand while washing a knife, knife mfr is SL liable b/c the
dangerousness of the design did cause the harm.
4. PATENTLY OBVIOUS DEFECTS a. NO RECOVERY - Dreisonstock v Volkswagenwerk (p797) - P sues for design
defect b/c of danger of a VW van that has no hood to protect driver.
i. CT - Unlike in more complex design defect cases, P was in a position to
evaluate the risk, and selected this car despite the obvious risk.
ii. Same deal in Delveaux (convertible)
b. RECOVERY IF MISUSE IS FORESEEABLE - Micallef v Miehle (NY, 1976,
p786) -- P=s hand was mauled while he tried to repair/clean blemish (Achase a
hickey@) from an operating photo printing machine.
i. P: D should have installed safety guards, esp since D knew everyone does
this.
ii. D: The danger was obvious. Everyone knew this would result.
iii. CT - For P (overruling Campo which had protected Ds from liability if defect
was patent).
iv. Even though P was misusing the product, it was a foreseeable misuse.
v. [RS: This is unilateral harm, bilateral care. In theory, we should want to see
the cheaper care taken. While it seems very cheap for P to refrain from
sticking his hands in the moving machine (in comparison w/ installing
guards), it actually may be quite expensive, b/c the added delay that turning
39
machine off would create may result in P losing his job.]
vi. [RS: P is suing mfr, not employer, b/c workers comp damages are scheduled
and do not include P&S. Under workers comp legislation, mfr is not able to
turn around and sue the employer for compelling P to take these risks, b/c that
would undermine the workers comp limits on employer liability. Since
employer=s liability is limited, he may buy and employ unjustifiedly
dangerous eqpt. Either mfr or employee will bear that residual harm
(depending on who is a cheaper precaution taker), but employer is definitely
off the hook under workers comp]
5. Barker v Lull Engineering (CA, 1978, p801) - High-lift-loader topples over when an
inexperienced P operates it on a steep slope, as directed by employer. P injured while
leaping from machine. (Common sense analysis seems to show that employer at fault
for sending him on the slope.)
a. H: TC - D; SupCt - Reverse
b. Sup Ct=s First Point - TC erred in requiring P to show product was both
Aunreasonably dangerous@ and Adefective@. This is an unfair dual rqmt on P,
and, unreasonably dangerous may be too high a standard anyway. (RS: This is a
terrible opinion. Unreasonably dangerous and defect are essentially synonyms in
cases like this.)
c. Second Point - TC erred in limiting liability to cases in which product was used as
intended. D should liable for defects that cause harms in any FORESEEABLE
use.
d. NEW TEST (replacing Aunreasonably dangerous defect@): P can recover if (1)
the product is not as safe as consumers expect OR if (2) the product fails a BPL
test (ie - alternative design would have prevented accident).
i. Consumer expectation test - RS: poor test b/c we know that consumers
regularly misperceive risks. Even non-negligent or highly safe designs may
fail to meet consumers= uninformed expectations.
ii. BPL/Alt Design - RS: this test is okay, but ct misplaces the burden. P should
have to show that alt design is safer; this court holds that P must only come up
with an alternative idea, and D must prove that it isn=t safer. this holding
makes it much easier to complete a PF case, meaning more suits will reach a
jury, which can come up with all sorts of verdicts. (This is a subtle but
significant change in standard)
e. This decision is a movement towards (but not all the way to) SL. Very plaintiff
friendly. (Today, most jurisdictions apply a more traditionally negligence
standard.)
6. O=Brien v Muskin Corp. (NJ, 1983, p813) - P ( a drunken trespasser) dove from
garage roof into a homeowner=s above-ground 3-foot vinyl-bottomed pool, sold by D.
P=s hands spread apart on the slippery vinyl and he hurt his head. P is unable to
show any alternative designs, but claims something less slippery should have been
used.
a. TC - doesn=t allow it to go to jury b/c P failed to show any alternatives.
b. NJSupCt- For P. If a product is unreasonably dangerous and no alternatives exist,
it shouldn=t be sold at all. (If risks outweigh utility, do not sell it at all.)
c. [NJ legislature responded to this decision with a statute precluding liability in
cases where there is no technically or practically feasible alternative.. IE - let
consumers choose for themselves if they want to take dangers.]
E. DUTY TO WARN - Usually a negligence standard - duty to give reasonable warning of
risks that mfr knows about or reasonably should know about (except for asbestos, which
gets SL)
40
1. Mfr has a duty to warn of non-obvious and non-common-knowledge risks. Benefits
and costs of warnings:
a. Ben: Enables consumers to use products more safely (reduce risk of injury)
b. Ben: burden of the precaution is quite small B just a warning sticker
c. Ben: gives consumers full knowledge so that they can choose whether or not to
use at all.
d. Cost: Risk of info overload (ie a huge possible cost of precaution). Can=t read
1000 warnings.
e. Cost: Its arguable that people don=t pay attn to warnings even if there is a small
number of them. This precaution produces no benefit. The design must be
changed.
f. Cost: Ds consider Aduty to warn@ rqmt a wild card b/c juries can too easily find
for P=s under this rationale w/ weak evidence just as a way of punishing cold, rich
mfrs.
2. MacDonald v Ortho Pharmaceutical Corp (MA, 1985, p820) - P suffered stroke after
taking birth control pill that contained a warning re: blood clotting in the brain, but
did not mention stroke by name. P sues for negligent failure to warn (ie warning was
negligently inadequate).
a. TC - jury - P; AppCt - affirm
b. CT - 1st Issue: Does D have a duty to warn the patient? Learned Intermediary
Principle. Normally, for prescription drugs, mfr need only gear warning to the
prescribing physician who has the duty to warn the patient. Ct rejects the rule for
birth control b/c (1) there is relatively little dr/patient interaction and (2) the
patient decides to take this prescription without much dr input. H: IN THIS
CASE, MFR HAS DUTY TO WARN THE PATIENT.
c. CT - 2nd Issue: Was the warning adequate? Even though the warning met FDA
requirements (D=s defense), that is only evidence, not proof, of non-negligence.
Regardless of FDA, mfr must make the warning Acomprehensible to the average
user@
d. [P probably didn=t join doctor in the suit b/c she was afraid that jury would blame
doctor entirely more and P would be stuck with judgment against a comparatively
shallow pocket.]
e. CAUSATION - What must P show re: causation in order to recover? (D can
disprove any of these to defeat P=s whole causation argument.)
i. That she didn=t know of the risk from any source other than the warning.
ii. That she did read the warning.
iii. That the warning failed to communicate the risk in a way Acomprehensible to
the avg user@.
iv. That she would not have used the product had the warning been adequate
(Abut for@).
S In Canterbury this test is objective (ie, would a reasonable person have
opted not to ...). Here, the standard is not discussed - the determination is
left in the jury=s hands.
v. That the injury (stroke) was caused by the product. (This is often very tricky in
drug cases)
3. ASBESTOS - STRICT LIABILITY
a. The classic unavoidable risk B the product is very useful and also unalterably
dangerous. In aggregate, it has saved many more lives than it has cost.
b. Borel v Fiberboard Paper Products Corp (Fed, 1973, p843) - (the original asbestos
case) CT: D had a duty to warn, even though the risks of exposure were
essentially unknown at the time of the harm. Officially, the ct applied a
negligence standard, holding that D was negligent not to have known and warned
41
earlier.
c. Beshada v Johns-Manville (NJ, 1982, p844) - Ct applies SL to the duty to warn.
d. SL has not been adopted in other (non-asbestos) duty to warn cases b/c it is
impossible to warn of
the unknowable.
Further, if d rqd by SL
to warn of possible
harms, there will be
info overload as Ds
warn of every
conceivable harm in
an effort to preclude
liability.
4. ROLE OF STATUTES & PREEMPTION
a. King v DuPont (1st Circuit, 1993, p846) B P sues D for harms from herbicides. D
defends on grounds that it met the rqmts of FIFRA (Fed. labeling rqmt re:
herbicides).
i. I - does FIFRA pre-empt state tort law claims? H - Ct: yes, b/c it ensures
nationally uniform rqmts. State common law liability is pre-empted.
ii. [RS: this defense is most effective in duty to warn cases b/c the risk of info
overload is serious. Not as effective in design cases]
5. THE INHERENTLY DANGEROUS PRODUCT - General Rule: A product is not
defective if its bad qualities cannot be separated from the good (eg - tobacco, alcohol,
guns, ice cream, convertibles, many pharmaceuticals). By definition, these products
cannot be re-engineered; there is no safer alternative design.
a. Is there a duty to warn? Yes, unless the danger is open and obvious.
b. Design Defect liability? Generally, no, as the restatement implies.
i. Exception - Muskin swimming pool case - there, the court applied a risk
utility test to determine that the product should not have been made at all,
regardless of warnings. (Subsequently overturned by statute)
ii. Risk/utility based judgments have been frowned upon b/c they interfere with
consumers= autonomy. If a person is warned of the risk, she should be
allowed to decide for herself.
iii. EG - If alcohol were judged on a risk/utility basis (and mfr were stuck with all
costs), mfrs would have to raise prices to such a degree that it may not be
worth it to keep producing. So, the cost of booze would be enormous, and it
would also have the negative effect of eliminating consumers= incentive to
take care B anytime they commit a tort under the influence, the damage will be
borne by the deep-pocketed mfr.
c. Generally, courts decide inherently dangerous products cases by using a BPL
analysis: if the risk>utility, then the
mfr is liable. This is officially a
negligence standard, but it ends up
working a lot like SL b/c of the
nature of these product.
(QUESTION - hasn=t the Muskin
overturning dampened courts= use of
the risk/utility doctrine?)
d. Legislature could make this work more smoothly, perhaps, by passing SL (no
fault) for inherently dangerous products, but cap or schedule damages.
F. PLAINTIFF'S CONDUCT
42
1. Daly v General Motors (CA, 1978, p851) B Drunk driver w/ unlocked doors and no
seat belt killed in wreck when thrown from car. P sues under SL on grounds of
design defect (usually a nglg situation) based on fact that car should have been
designed more safely to keep P in.
a. H: TC - D; AppCt - Reverse and remand, but TC should consider decedent=s
compar nglg
b. Holding based on what is essentially an affirmative defense. W/o such a defense,
mfr would be wholly liable b/c it is reasonably foreseeable that the car would be
used in this way, and the burden is on the mfr to design against foreseeable misuse
(foreseeable negligence). Here, mfr is prima facie liable, but is raising an
affirmative defense.
c. KEY ISSUE: Can comparative negligence be applied to a strict liability case? Ct
- YES:
i. Allowing such a defense does not bankrupt the purpose of strict liability. (RS
agrees b/c this is not really SL anyway, even though the court calls it that. It is
a case in which a mfr is strictly liable for negligent design.)
ii. It doesn=t negatively alter parties= incentives. Mfr still has incentive to take
care b/c it is still partially liable (or totally liable if P isn=t nglgt).
iii. Daly extends compar nglg to mfr and design defect cases (much to RS=s
chagrin)
iv. (RS: Compare nglg should NOT be mixed with real SL b/c it defeats the
whole point. Under SL, mfr is deemed responsible for all harms and thereby
has incentive to innovate. Reducing mfr=s liability defeats the goal of
applying SL in the first place.)
G. PUNITIVE DAMAGES IN PRODUCTS LIABILITY
1. Punitives carry an air of punishing some kind of culpability. Used when (1)
compensatory damages alone do not provide enough incentive to deter, (2) D conceals
further risks from courts and consumers in hopes of getting away with it (ie, asbestos)
2. Problems with applying punitives in products liability cases:
a. Awards are out of whack. (Eg- McD=s pays woman $1 mill in punitives for hot
coffee spill). RS: this isn=t so crazy B the coffee was 30 degrees hotter than
competitors= and there had been numerous complaints.
b. In products liability, there are so many claimants that it is possible that early
punitive awards may end up bankrupting D fast, preventing even compensatory
awards for later Ps.
c. Gives juries a wild card to punish behavior that may not merit it. Essentially,
punitives put juries=s sympathies into direct contradiction with the efficiency
bases of the tort system. (Eg - in the Ford Pinto case, the jury assessed punitive
damages of $125 mill largely b/c the co made risk calculations regarding the
location of the gas tank in which the placed a dollar figure on a human life. The
jury was appalled, even though Ford got its figure from a USG regulatory
evaluation.) How do cos resolve this? Don=t ever put anything on paper which
puts a dollar figure on a human life, even if it is (as it is) a critical part of liability
calculations.
C. PRODUCTS LIABILITY REFORM - Definitely needed B too much overdetterence.
Drugs, airplanes and even ladders are getting too pricey to purchase b/c of products
liability. Possible alternatives:
1. Legislation - Law-makers could disallow punitive damages (as they have in a few
jurisdictions), or cap them, or disallow them if D fulfills regulatory rqmts.
2. Contract - Allow consumers to waive tort liability, or waive P&S liability, or agree to
arbitration instead of jury, in exchange for an up-front discount in the cost of a
product. (This has not been considered anywhere other than in academic circles.)
43
H. TOBACCO
1. Pritchard v Liggett & Myers Tobacco Co (3rd Cct, 1961) - P smoked for 32 years and
then
got
cancer.
Sued
for (1)
nglgt
failure
to
warn
and (2)
misrep
resenta
tion of
the
benefit
s of
smokin
g
.
1. TC - D - no showing of causation; Circuit - Remand - jury should determine.
2. Goodrich (concurring) - even good (ie non-defective) tobacco makes you sick, and
everyone knows it (ie, no misrepresentation)
3. 2d Trial - jury found causation, but D not nglgt and had not made any express
warranties. The ads, as Goodrich suggested, were just puff. VERDICT - P
assumed the risk. For D.
4. P appealed again, AppCt REMANDS again - not enough evidence of assumption
of risk.
5. P drops case before 3rd trial B D had successfully bankrupted P=s effort - ran out
of money. (AStonewall@ or Ascorched earth@ defense B just outspend and they=ll
have to give up)
6. D=s substantive defense is based on a Aforked tongue@ policy: (1) cigarettes have
never been proven to be dangerous, and (2) the harms of cigarette smoking are
common knowledge
2. Cipollone v Liggett Group (US, 1992) - P=s claims: (1) design defect (bundling a
failure to use a safer design argument and a risk/utility argument together), (2) Failure
to warn, (3) violation of express warranty, (4) fraudulent misrepresentation, (5)
conspiracy
1. As in all other individual P cases, D takes a scorched earth, zero settlement
approach
2. USSupCt plurality holds that 1965 Act does not preempt (reversing CtofApp) but
the 1969 Act is preemptive in regard to claims re: failure to warn and false or
misleading advertising. So, any post-1969 claims re: failure to warn or
misrepresentation have been preempted by statute.
3. P=s other claims are still alive, but they are weaker, and D ends up outspending P
again.
3. Gunsalis v Celotex (an asbestos co sued together w/ American Tobacco) (E.D.P.A.,
1987) - (Judge=s memo granting summ j to D) - No good showing of causation (P
smoked, worked w/ asbestos, stabbed in heart B hard to tell where the harm came
from). P=s causes of action (and ct=s reaction):
44
1. Design Defect. (P failed to show any alternative design; as Goodrich noted in
Pritchard, there is no reasonably safe alternative. FOR D.)
2. Risk Utility. (Ct refuses to adopt Muskin type reasoning w/o legislative authority.
FOR D)
3. Misrepresentation. (P failed to show he reasonably relied on D=s ads, not other
sources, in deciding to smoke. FOR D)
4. Failure to Warn. (Ct allows the pre 1966 claims (Cippollone had only reached
AppCt at this point and that was their decision) to proceed to jury b/c they are not
preempted.
4. American Tobacco v Grinnell (TX, 1997) - Duty to warn claim
1. CT - In TX, there is no duty to warn of commonly known dangers. Health risks
were of common knowledge, so no claim there. However, risk of addiction was
not of common knowledge until 1988, so claim can proceed on that ground.
2. CT also lets claim go forward on mfr defect grounds that there were pesticides in
the tobacco (such a claim would require showing that the pesticide CAUSED the
harm). (Dissent and RS - since all companies= cigarettes all have this feature, its
really a design flaw, not a mfr defect.)
5. To date, tobacco has paid $0.00 to individual Ps b/c their suffocation strategy works.
6. CLASS ACTION
1. Castano et al v American Tobacco et al (5th Circuit, 1996) 2. Class actions benefit Ps: (1) allows for pooling of resources to combat tobacco=s
massive resources, (2) causation needs to be proved only once, not for each P, (3)
D is unable to effectively demonize individual Ps (4) judicial blackmail B D likely
to settle even if risk of losing is small just b/c the potential damages to thousands
of Ps is an enormous price to pay.
3. Tough on Ps/Good for Ds b/c - (1) any judgment/settlement may preclude any
future actions from the class members,(2) each individual P has less of say in how
the suit proceeds.
4. District Court - Certified the Class
5. Circuit - Reversed certification b/c (1) conflicts of substantive law, (2) Ps= have
varied exposure to the harm, (3) not convinced that class action is rqd b/c doesn=t
think there would be a flood of individual cases otherwise (Ps= reaction - of
course there wouldn=t be because its proven that we cannot win individually), (4)
case would be endlessly complex; more efficient individually, (5) these claims are
not mature (ie - the addiction oriented claims have not been adequately tried on
individual basis yet)
7. THIRD PARTY APPROACH
1. TX v American Tobacco Co. (EDTX, 1997) - (Judge=s memo refusing D motion
to dismiss)
2. The state is trying to recover medicaid expenses spent treating indigent people
suffering tobacco related harms.
3. D: TX can=t sue b/c its not the injured party (CT: NO. TX has quasi-sovereign
interest and therefore may sue D directly. Subrogation not required.)
4. D: TX Product Liability Act prevents actions when harm is common knowledge.
(CT: NO. Since this is not purely a products liability case (contract, fraud) it can
proceed.
5. D: Imposs to show proximate causation. (CT: NO. State may be able to show it.)
6. D: Legislature, not courts, should make these decisions. (CT: NO.)
7. [RS: D should have plead that it actually saves medicaid money when people die
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of tobacco related diseases b/c they die earlier and faster and therefore cheaper.]
8. NATIONAL SETTLEMENT
1. This and 39 other state actions lead to the national settlement proposal, which
focuses on preventing underage smoking, includes a massive payout know, but
also eliminates the possibility of any future class action or non-subrogation 3rd
party suits (which were the only ones to have had any effect in the last 50 years)
2. This proposal is essentially a proposal to radically transform the tort system (in
this instance) away from tort toward a combo of regulatory requirements coupled
with risk spreading (insurance).
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